BEYOND KNOWN SPACE:ADR in the 4th DIMENSION

a presentation by

HEW R. DUNDASChartered Arbitrator DipICArb CEDR-Accredited Mediator

to SINGAPORE INSTITUTE of ARBITRATORS/LAW SOCIETY of SINGAPORE

Tuesday 27th February 2007

OVERVIEW of PRESENTATION

Introduction Dispute Resolution Options Forms of ADR Some Key Issues Conclusions

DISPUTE RESOLUTION OPTIONS

Litigation Arbitration Domestic/International Expert Determination Mediation Other ADR Advantages and Disadvantages

FORMS OF ADR

DeterminativeExpert DeterminationAdjudicationPendulum/Baseball/Flip-Flop ArbitrationOther

Non-DeterminativeMediation/ConciliationENE/PMTs/DABs/DRBsMed-Arb and Arb-MedOther

EXPERT DETERMINATION

Historical Origins Comprehensive English Case Law Use of Expert’s Expertise Applicability of Rules of Natural Justice Expert Has Procedural Free Hand Severe Limits on Grounds for Challenge Robust Support by English Courts Enforcement

FORMS OF ADR: NON-DETERMINATIVE

Executive Negotiation Early Neutral Evaluation (ENE) Private Mini-Trials DABs & DRBs Mediation/Conciliation Med-Arb and Arb-Med Arbitrediation Other/None of the Above

SOME KEY ISSUES

Enforcement User Reluctance to try Something New Lawyer Resistance Med-Arb faces difficulties in England Problems with Issue of Consent Awards Arb-Med IS a (the) Solution !!

MED-ARB IN ENGLAND (1)

Effectively ‘outlawed’ by Glencot v BarrettAdjudicator acted as Mediator

Private sessions

Partially successful, reverted to Adjudication

Decision set aside for Apprehended Bias

Decision unhelpful, unduly restrictive English law goes too far i.r.o. bias Appoint Arbitrator + Mediator

MED-ARB IN ENGLAND (2) Weissfisch v Julius/Ors [2006] EWCACiv218

J is arbitrator in dispute A vs R

J formerly legal advisor to each of A and R

J legal advisor to company at heart of dispute

J had acted as mediator between A & R

Parties fully informed/advised

A sought injunction to stop J arbitratingCoA refused to grant injunction

CoA refused to disturb arbitration agreement

DIFFICULTIES withCONSENT AWARDS

Cannot convert mediated Settlement Agreement into Consent Award: no dispute left to arbitrate

Use of Consent Awards for Money-Laundering e.g. in USA

Consent Awards at risk under Proceeds of Crime Act/Money-Laundering Regulations

ARB-MED is the ANSWER

Arbitral proceedings (e.g. accelerated) Issue Award in Sealed Envelope Arbitrator commences a Mediation

If successful, destroy Award unreadIf unsuccessful, open Award

Glencot v Barrett irrelevant/inapplicable

CONCLUSIONS (1)

Widen The Options/Expand the Toolkit Think ‘outside the box’ Creative Solutions to Modern Problems Take Risks – Caution is Expensive ! Lose Fear of P/I Risks

CONCLUSIONS (2)

THANK YOU

for listening to me this evening