1. ADR Principles and Practice: a decade's developments Henry Brown & Arthur Marriott QC ACADEMIC SEMINAR SERIES ADR Principles and Practice: a decade's developments Henry Brown & Arthur Marriott QC

2. ADR Principles and Practice 2 nd edition - 1999 3 rd edition – December 2011

3. Huge increase in mediation  Mediation in dispute resolution mainstream  Other ADR processes still used but mediation dominates and largely runs through them  May have equalled or overtaken arbitration in commercial disputes  Different fields mutually supportive: civil, commercial, family, community, workplace  Increase in cases, organisations (CMC = 45), mediators – also awareness and acceptance

4. Adjudicatory forms of ADR  Arbitration widely accepted as form of ADR  Increase in usage and spread especially in BRIC countries  Bilateral investment treaties: NAFTA, ICSID  Contractual adjudication  Dispute Boards  Expert determination  Administrative or statutory tribunals  Private judging (in some jurisdictions)

5. Courts and ADR  Rules, practice directions and protocols  Courts adopting ADR processes  Court-attached mediation by independent mediators  Courts directing or recommending ADR  Courts imposing sanctions for non-use  The Multi-Door Courthouse (in some jurisdictions)

6. Hybrid ADR developments  Limited use of earlier processes such as mini-trial  Consideration of bespoke processes  Claims Handling Agreement for coal miners’ claims  Plymouth City Council : option of Complaints Review Panel  Human Rights Act: “mediator, ombudsman or otherwise”  Collaborative processes incorporating mediation

7. Development of mediation practice  Increasing flexibility and overlap of models  Flexibility subject to experience, ethics, efficacy  Development of “hybrid” model incorporating elements of commercial and family models  Re-examination of evaluation and greater awareness of “the shadow of the law”  Greater appreciation of emotional, personality and symbolic considerations  Attempts to identify individual mediator approach

8. Introduction to dispute resolution psychology  Awareness of unconscious factors  Intuition – its powers and its perils  Body language and Freudian slips  Effect of suppressed emotions, placebos, nocebos  Complementary nature of reason and emotion  Personality variables  Symbolism  Empathy  Neuroscience and the brain

9. High conflict disputes  Identifying a specific category of high conflict disputes and parties, with indicators  Understanding attachment theory and reflective function  High conflict personalities and traits  Attachment disorganisation  Personality disorders  Personality traits  Special strategies for dealing with high conflict disputes  Cautions and reservations

10. Collaborative processes  Collaboration  Generic heading for a range of processes  Individuals, groups, corporations, NGOs and states  Partnering  Consensus building and public dialogue  Collaborative law process  Mediation within collaborative process  Collaborative “lite”

11. Restorative Justice and Practices  Restorative justice  Victim-offender mediation and programmes  Restorative cautioning  Young offenders  Restorative practices  Family group conferencing  Schools and workplace  Restorative Justice Council and other bodies  The August 2011 riots and the role of ADR

12. Drafting, technology and ODR  Drafting  Codes of Practice, procedural and ethical rules  Agreements to mediate or participate  Recording the outcome  Information Communication Technology (ICT)  E-mail and other communications, virtual meetings  Websites, networks, data storage and retrieval  Online Dispute Resolution (ODR)  Disputes arising online  “Real world” disputes dealt with by ODR e.g. double-blind bidding; online arbitration; and online support

13. Confidentiality and privilege  Need for clarity: UK and elsewhere  Scottish and Irish reform  US Uniform Mediation Act  EU Directive on Cross-Border Mediation  Confidentiality  Human Rights Act 2000 and other principles  Exclusion of confidentiality  Privilege and its exclusion  A mediation privilege?

14. Regulation, training and funding  Regulation  Domestic or international  State or private – “the market will regulate”?  Training  Fundamental generic elements  Models and fields of activity  Continuing Professional Development (CPD)  Funding  Public and private funding  Insurance

15. Enforceability and enforcement  Enforceability of agreements for ADR  Court’s power to stay proceedings  Sufficient particularity of ADR provisions  Why compel a party to negotiate?  Enforcement of ADR outcomes  Arbitration awards  Expert determination: action on contract  Non-adjudicatory processes: contract, order or award  EU Cross-Border Directive: mediation settlement enforcement order (blueprint for the future?)

16. Extensive writing, case law and references  Books, articles and research, direct and indirect: 19 pages of selected bibliography  Developing case law, direct and indirect: 145 case references  Extensive references in statutes, treaties and conventions, Codes, Protocols, Guidance Notes, Rules of Court and arbitration rules  Short-list of ADR organisations with contact details, in UK and abroad: 133 entries