Set out below is a very brief outline of other established processes that are available to resolve commercial disputes. The staff at the Mediation Centre are not only mediators but are also qualified and practice in all the ADR processes described below as well as many dispute avoidance processes that are not listed such as Dispute Boards and early neutral evaluation.
This can take a number of different forms:
Mediation is used to try and resolve the dispute but if this is unsuccessful, the whole of the dispute is submitted to an arbitrator for a binding decision, (hence the name Med-Arb). The arbitrator makes an award on all matters in dispute and disregards any agreement reached during the mediation. Further submissions and procedures would normally accompany this process: or
Mediation is used to try and resolve the dispute completely but if this is unsuccessful, the outstanding issues are submitted to an arbitrator for a binding decision. A settlement agreement is drawn up, overseen by the mediator, for those agreed issues and the arbitrator makes an award on only the outstanding matters. Further submissions and procedures might be used however it may be agreed that the mediation bundle and only a further short closing position statement be submitted.
Another Med-Arb solution is to submit the mediation bundle, each sides final offer and a short closing position statement from each side to an arbitrator. The arbitrator then decides, based solely on the submitted information, which final offer best suits the merits of the case and makes an award in settlement of the whole dispute as per the preferred final offer. The arbitrator in his award will give reasons for preferring the final offer adopted.
Which process is most suitable, if any, will largely depend on how detailed the contents of the mediation bundle is. We have in-house arbitrators that can be called upon for a fixed fee to perform any of the above solutions.
The exact meaning of conciliation vary betweens countries and even between industries within the same country. Most generally it usually involves a process similar to mediation but if agreement can not be reached, the conciliator comes to a decision on the remaining issues. Everyone is bound by the conciliators decision but can appeal it to arbitration or litigation within a fixed timeframe.
Litigation is action taken in court to resolve a dispute. Courts are the dispute resolution service provided by the state. However, in an attempt to settle disputes before court proceedings are commenced, with commercial litigation now comes a nearly compulsive requirement to mediate first. For further information on litigation.
Arbitration is the private sector equivalent of litigation. A recognised benefit of arbitration is that the parties are able to select an arbitrator of their choice, usually someone with particular expertise in the subject matter of the dispute. Combine this with confidentiality and the relative ease with which an arbitration award can be enforced in other legal jurisdictions and you have the key reasons why arbitration is such a popular form of dispute resolution in international contracts. For further information on arbitration.
Less formal but similar in nature to litigation or arbitration in as much that a neutral third party decides the dispute based on the legal rights and obligations as determined by the law. The process is usually relatively short and the decision binding unless appealed within a fixed timeframe.
Adjudication is now the most popular process used in the UK to settle construction disputes. Since its introduction in 1998, (Housing Grants Construction and Regeneration Act (HGCR) 1996), a party’s right to adjudication at any time has been exercised in thousands of disputes, many being finally resolved by this process. The adjudication process will either be defined in the contract or if not, follow the Scheme for Construction Contracts. For further information on adjudication.
Expert Determination is the process whereby agreement is made to refer a disagreement to an impartial expert third person and that everyone will then be bound by his or her decision. Like adjudication and arbitration, the parties can choose who the appointed expert is. The process is relatively quick, informal, confidential and inexpensive when compared to other processes. There are no formal hearings but the expert may meet with each side, possibly separately if there are no objections. There is no requirement to have legal representation or for everyone to see and hear what other parties has seen or heard. The processes followed may be entirely at the experts’ discretion or published rules may be followed. Exceptionally it may be decided not to submit any evidence at all and leave the expert to investigate and ascertain the facts and law, thus keeping costs to a minimum. It is primarily used to resolve technical disputes. For further information on expert determination.