1 / 12

LJD

LJD. LAW, JUSTICE and Development week 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT November 14-17, 2011 Washington DC. LAW JUSTICE and DEVELOPMENT. Mediation vs. Arbitration vs. Litigation: Understanding the Basics. Susan D. Franck

lee
Download Presentation

LJD

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. LJD LAW, JUSTICE and Development week 2011INNOVATION AND EMPOWERMENTFOR DEVELOPMENTNovember 14-17, 2011 Washington DC LAW JUSTICE and DEVELOPMENT

  2. Mediation vs. Arbitration vs. Litigation:Understanding the Basics Susan D. Franck Associate Professor of Law, Washington & Lee University School of Law 15 November 2011 LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

  3. Evolution of International Commercial Dispute Resolution • Generation #1: • Gunboat Diplomacy • Diplomacy and “soft” negotiation • Generation #2: • Focus on legal rights • Judicialized dispute resolution (courts and arbitration) • Generation Next: • Thinking systematically about Appropriate Dispute Resolution (ADR) • Consider adjudicative (arbitration) and non-adjudicative options (mediation) • Selectively choose options to achieve maximum client objectives LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

  4. Types of Options to Consider in “Generation Next” • Negotiation • Mediation • Early Neutral Evaluation • Expert Determination • Fact Finding • Arbitration • Mixed Processes • Mediation-Arbitration • Arbitration-Mediation • Ombuds • National Courts LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

  5. Basic Definitions: Negotiation • Dialogue amongst interested parties. • Objective is to seek a common decision to achieve complimentary objectives in order to achieve gains to settle a dispute. • Different types of negotiation: • Adversarial • Interest Based LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

  6. Basic Definitions: Mediation • Mediation uses a neutral third party. • The mediator assists two or more parties to reach a voluntary, negotiated settlement of their differences, without prejudice to legal remedies. • The mediator uses various skills and techniques to help the parties choose to reach a settlement. • The mediator has no power to make a decision. • Facilitative Mediation (based upon the parties’ mutual interests) • Evaluative or Directive Mediation (based upon mediator’s professional opinion) LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

  7. Basic Definitions: Arbitration • Decision made by a neutral third party (1 or 3 specialist arbitrators). • Finally resolves a dispute using adjudicative capacity and applying facts to law. • Awards are immediately enforceable • Compare ICSID Conciliation = functional equivalent of non-binding arbitration LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

  8. Comparing Options

  9. Comparing Options

  10. Common Misconceptions about ADR • 1. ADR is non-binding determination of rights • False. ADR involves rights but is mainly based on the parties’ interests • 2. ADR is not suitable for civil law systems • False. Cost savings may be higher in common law systems where litigation is more expensive, but ADR is equally valid in all legal systems • 3. A good lawyer does not need ADR to settle a case • False.The good lawyers are the ones who recognize the advantages of ADR • 4. ADR is suitable only for small disputes, family law, etc. • False. There is no limit on the potential application of ADR • 5. ADR is suitable only for large companies • False. There is no limit on the potential application of ADR. • 6. One should avoid extending an offer to mediate if there is a chance the other side will not accept • False. On the contrary, a refusal to mediate may indicate a party’s lack of confidence in their case

  11. Basic resources: ADR and International Investment • Definitions and Supporting Information on ADR: • http://investmentadr.wlu.edu/resources/page.asp?pageid=587 • Podcasts about international investment and ADR: • http://investmentadr.wlu.edu/Podcasts/ • Legal research guide for investment law and ADR: • http://investmentadr.wlu.edu/deptimages/Resources/Research%20Pathfinder.pdf LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

  12. Thank you! LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

More Related