1. ACC Europe ADR Forum Shopping: What are the options for dispute resolution outside litigation?

2. ACC Europe ADR Forum Shopping: What are the options for dispute resolution outside litigation? Speakers, Nicola Mumford and Tom Price

3. ACC Europe Nicola Mumford and Tom Price 3 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Overview Context Types of ADR process: Features, Pros & Cons Dispute Resolution Clauses Arbitration/Mediation bodies and rules Choosing the most appropriate process

4. ACC Europe Nicola Mumford and Tom Price 4 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Context Dispute resolution in a contractual context A process is agreed before any dispute Allows you to set up a particular process ……… but also bound to follow it The options if there is no alternative dispute resolution clause

5. ACC Europe Nicola Mumford and Tom Price 5 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR Process Negotiation Mediation Early Neutral Evaluation Expert Determination Arbitration

6. ACC Europe Nicola Mumford and Tom Price 6 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR Process A Spectrum Control

7. ACC Europe Nicola Mumford and Tom Price 7 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR Process Negotiation - Features —No third party —Non binding (until agreement i.e. without prejudice) —Non judgmental during the process and (on reaching agreement) —No rules or procedure —Confidential

8. ACC Europe Nicola Mumford and Tom Price 8 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR Process Mediation - Features —Third party input —Non binding (until agreement) —Non-judgmental during process and on reaching agreement —Generally some informal rules and procedure —Confidential

9. ACC Europe Nicola Mumford and Tom Price 9 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR process Early Neutral Evaluation - Features —Third party input —Comments made during the process can be binding —Judgmental but not binding —Generally minimal rules and procedure —Confidential

10. ACC Europe Nicola Mumford and Tom Price 10 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR Process Expert Determination - Features —Third Party input —Binding process —Judgmental —Some rules and procedure —Confidential

11. ACC Europe Nicola Mumford and Tom Price 11 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR process Arbitration - Features —Third Party input —Binding process —Judgmental —Heavily rule and process orientated —Confidential

12. ACC Europe Nicola Mumford and Tom Price 12 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR process When is ADR inappropriate? —Need an injunction —Want publicity —Need a precedent —Economic Power —No dispute —No interest in settlement

13. ACC Europe Nicola Mumford and Tom Price 13 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR process Why ADR and not Litigation? —Factors vary depending on which ADR process —Control —Flexibility —Forward looking —Speed —Cost/Ability to recover costs continued…

14. ACC Europe Nicola Mumford and Tom Price 14 ADR Forum Shopping: What are the options for dispute resolution outside litigation? …continued —Relationship —Confidentiality —Effectiveness —Focus

15. ACC Europe Nicola Mumford and Tom Price 15 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR Process Which ADR Process if no ADR Clause/What ADR Clause you should have? Need ultimately a binding process May want to build up by layers

16. ACC Europe Nicola Mumford and Tom Price 16 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR Process When to Employ an ADR Process? Natural Progression – Negotiate, Mediate and Litigate/Arbitrate Building in early neutral evaluation and expert determination

17. ACC Europe Nicola Mumford and Tom Price 17 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR Process Who should get involved? Authority Knowledge Perception

18. ACC Europe Nicola Mumford and Tom Price 18 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR Process Which organisations will assist? Mediation —CEDR —ADR Group —Ad Hoc Mediations Arbitration —ICC —LCIA —CDP —Ad Hoc Arbitrations

19. ACC Europe Nicola Mumford and Tom Price 19 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Types of ADR Process How does Mediation work? Choose Administrator Agree Mediator Submit key documents and case summary On the day —Plenary —One to one sessions —Horse trade —Settlement

20. ACC Europe Nicola Mumford and Tom Price 20 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Model Dispute Resolution Clauses

21. ACC Europe Nicola Mumford and Tom Price 21 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Arbitration/Mediation bodies and rules Arbitration The administration of the arbitration The rules of the proceedings If contract provides, go to that body If no provision for a body, can still go to one if parties agree continued ….

22. ACC Europe Nicola Mumford and Tom Price 22 ADR Forum Shopping: What are the options for dispute resolution outside litigation? ….. continued Ad hoc arbitration, i.e. no administrative support or rules Arbitrator makes the rules Ad hoc arbitration subject to a specified set of rules Always subject to Arbitration Act continue ….

23. ACC Europe Nicola Mumford and Tom Price 23 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Arbitration/Mediation bodies and rules Key differences in the rules, the arbitrators and the fees Seat of the arbitration

24. ACC Europe Nicola Mumford and Tom Price 24 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Arbitration/Mediation bodies and rules Mediation The administration of the mediation The identity of the arbitrator Not relevant for procedure Ad hoc mediations continued ….

25. ACC Europe Nicola Mumford and Tom Price 25 ADR Forum Shopping: What are the options for dispute resolution outside litigation? …. continued Differences in ADR bodies Court appointed mediations

26. ACC Europe Nicola Mumford and Tom Price 26 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Factors in Deciding which ADR Process to Chose (either if no ADR clause or in deciding what clause to have) Some overlap with factors relevant to ADR v litigation Enforcement Disclosure Costs Appeals

27. ACC Europe Nicola Mumford and Tom Price 27 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Factors Enforcement Negotiated, mediated settlements are agreements ENE Expert Determination – not subject to appeal Arbitration award. Implied agreement (contract or ad hoc agreement) to abide by it Action on the award in English Court continued ….

28. ACC Europe Nicola Mumford and Tom Price 28 ADR Forum Shopping: What are the options for dispute resolution outside litigation? …..continued If award was obtained abroad, can enforce in England with limited challenge under the New York Convention Can be easier than enforcing foreign judgment obtained outside the EU where no reciprocal enforcement by registration Foreign judgment in EU may be easier. EU arbitration award requires action on the award

29. ACC Europe Nicola Mumford and Tom Price 29 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Factors Disclosure Negotiation - none Mediation - some ENE/Expert determination – key documents Arbitration – full

30. ACC Europe Nicola Mumford and Tom Price 30 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Factors Costs Negotiation – minimal Mediation – relatively low ENE/Expert determination – still fairly low Arbitration – high

31. ACC Europe Nicola Mumford and Tom Price 31 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Factors Appeals Negotiation/Mediated settlement – does not arise ENE/ED – no right of appeal Arbitration – depends on rules used

32. ACC Europe Speakers: Nicola Mumford and Tom Price