A brief overview of the dispute resolution processes which are employed by our members
Alternative dispute resolution offers an extraordinary variety of techniques designed to suit all disputes and accommodate the wishes of the parties who be able to choose which process they will employ.
We set out below a brief outline of the principal Alternative Dispute Resolution processes which our members use to resolve disputes.
Alternative Dispute Resolution – determinative options – What is an arbitration?
Arbitration – Parties agree to an independent determination of the dispute by a third party neutral. The arbitrator prepares a written agreement for the parties setting out the issue/s to be determined and ensures that the determination (called an award) will be legally binding. Awards in contrast to court judgements are final. There are no appeals although subject to appeal in very limited circumstances such as review for misconduct of error of law.
- Party autonomy, they decide the process which they wish to employ and give the neutral arbitrator the authority to make a legally binding decision to resolve the dispute.
- Where the dispute involves a technical matter, the person chosen to arbitrate can be an expert with the appropriate special qualifications to understand what is in issue.
- The process aims to be quicker that litigation, for example, fast track rules may be adopted leading to an award being delivered according to the timetable set by the parties.
- There is a very significant saving of costs through expeditious hearings; a feature of arbitration is ability of the arbitrator to guide the parties to a quick resolution of the dispute for example, by recommending another ADR process such as mediation during the arbitration.
- Confidentiality means that unwanted publicity can be avoided. Only the parties know that arbitration is taking place.
- Flexibility, the parties are not obliged for example, to follow often protracted interlocutory steps associated with litigation. They have more control over the outcome of the dispute.
Why Arbitration is the only practical way to obtain an enforceable determination in a cross border or international dispute.
Arbitral awards are recognised and enforceable in many more countries than Court judgements because of the application of what is known as the New York Convention. In relation to cross border disputes an award made following an international arbitration can be enforced against the assets of a party wherever that party has assets. There is no similar convention facilitating the registration of Court judgements.
Awards can only be set aside by Courts on very narrow grounds. When conducting arbitration locally our members will ensure that the jurisdiction of the relevant Commercial Arbitration Act in the State concerned is invoked, so that the award will be legally enforceable. We frequently adopt fast track arbitration rules to ensure both expeditious processes as well and that we also act in conformity with the ethical rules and standards of the professional associations to which our members belong.
Mediation – Facilitation – Non determinative processes
Essentially, these are processes whereby the parties themselves are assisted by a member of chambers who are accredited and very experienced mediators.
As an experienced third party our member will draw upon their expertise to assist the parties to reach their own agreement to resolve their dispute.
How we help the parties resolve their dispute.
We strive to ascertain privately the underlying interests of the parties through separate meetings with each and also convene a joint meeting of the parties where we will explore the prospects of settlement.
We control the process in a structured orderly way, to promote constructive problem solving and decision making. Issues will be identified, views exchanged. We help the parties to communicate and negotiate effectively. Our members assist the parties by to clarifying the interests of the parties which underlie their respective positions. Options will be explored and the parties will be encouraged to reach their own decisions and agreement in settlement of the dispute.
Where it is clear that the parties cannot reach an agreement, we will not prolong mediation. Instead, we often raise with the parties innovative practical solutions, for example, we may propose other options perhaps recommending that the parties conclude a partial agreement on some issues and have an arbitration in respect of remaining issues which are unresolved. We may also recommend the use of a mediator for discrete aspects of a dispute.
We know how important relationships are even if a dispute remains unresolved; we will seek through the technique of transformative mediation to empower the parties to deal with their relationships in a non confrontational way. There may be a conference between the parties and each is given an opportunity to explain their feelings and attain greater self realisation and then not adopt extreme positions but to be reasonable and be prepared to reach a settlement.
Expert Determination, Facilitation, Appraisal or Early Neutral Evaluation and Online dispute resolution.
Most disputes are capable of settlement with appropriate assistance.
How we assist:-
Our astute dispute resolvers employ not only their experience but a variety of techniques carefully tailored to the particular circumstances of your dispute. We do more than simply express an opinion as to who is right or wrong. Our aim is to quickly settle the dispute or at very least improve the understanding of the issues and to narrow them.
Our innovative techniques:-
We offer a variety of innovative dispute resolution processes. We might for example, recommend that an exchange of written submissions take place after a teleconference between of our members and the parties. We would assist the parties to negotiate a resolution of the dispute and perhaps, if the parties agree proceed to determine the dispute on the documents as an expert, not as an arbitrator, reasons will also be provided if required.
If requested we will make a binding determination of a dispute which concerns a technical issue; this determination may include the receipt of evidence from expert witnesses or be simply based upon the substantial expertise of our member.
Assistance is given to the parties to define and analyse the issues, exploring each with alternative solutions. Consensus will be sought through encouraging communication the willingness of the parties to compromise. Assistance will also be given to the parties in exploring the proposed solutions and the means by which they will be implemented.
Early Neutral Evaluation
Parties to a dispute who are contemplating litigation may submit the dispute to one of our members who will evaluate the competing legal issues and questions of law and then produce ( if requested ) a confidential unbiased written decision which will set out the most likely judgement of a Court if a proceeding were to be issued and go to trial. The parties can submit written comments or meet our evaluator.
Although not necessarily binding (unless the parties agree), in our experience this approach not only avoids the exorbitant costs of litigation but in producing a reasoned decision it encourages the parties to reconsider their positions having regard to the identified strengths and weaknesses of their cases. This process is very conducive to settlement of disputes.
On line dispute resolution.
Our most recent innovation is online dispute resolution, a process whereby the parties may exchange information and documents online and under the guidance of one of our members be encouraged to narrow the areas of disagreement and propose solutions. This form of dispute resolution is particularly cost effective and in our experience does not preclude the use of other processes at any stage, to progress settlement of the dispute.
What is the best process to resolve your dispute?
Our members recognise that each dispute is different and requires detailed consideration of the factual background and issues before a considered recommendation can be made as to the most likely way in which to resolve the dispute through an alternative dispute resolution process.
Accordingly, at our contact page, we invite you to provide a brief outline of your dispute and we will then provide you with a prompt and no obligation reply recommending the most suitable option to resolve your dispute.