The AOI Journal Issue 3 by AOIJOURNAL

THE OI JOURNAL I S S U E 3

WHAT'S IN A NAME?

2 0 2 2

IS THE FUTURE OF ALTERNATIVE DISPUTE RESOLUTION (ADR) COMPULSORY?

YOUNG MEDIATOR FINDING INNER PEACE

THE AOI JOURNAL

2022

ISSUE 3

CONTENTS Message from the Executive Director & Designer

Is the future of Alternative Dispute Resolution (ADR) compulsory?

Evolve

ADR Remedies for Protection of Fundamental Rights in India

Mediation: When is it the best process choice?

Young Mediator - Finding Inner Peace

Traditional Alternative Dispute Resolution: A spring of restorative criminal justice in Kenya17 What’s in a name?

Construction Adjudication

Mediation v Arbitration: The best resolution tool in investment disputes

The importance of communication in ADR

Presidents of the AOI Journal: Rahim Shamji & Dr. Zoe Giannopoulou Executive Director & Designer: Kim Kortlepel

THE AOI JOURNAL

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ISSUE 3

MESSAGE FROM THE EXECUTIVE DIRECTOR & DESIGNER

Dear Reader, we are delighted to share the third issue of the AOI Journal with you. This Journal was designed to bring together a diverse range of articles, advertisements and creative pieces from ADR specialists around the world. The authors of the third issue, offered their perspectives and experiences in the world of ADR and ODR fom the UK, Greece, Kenya, Atlanta, India and Bangladesh. ADR ODR International is now represented in 37 countries and states and therefore it is our goal to bring together different views

Kim Kortlepel

and experiences in order to learn from one another. We believe, that as ADR specialists it is our duty to raise awareness and to promote alternative dispute resolution and online dispute resolution. If we don't who will? Thank you to those who contributed to the third issue of the AOI Journal. We hope you enjoy reading the third issue. Submissions toward the fourth issue are welcome! Kim Kortlepel

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IS THE FUTURE OF ALTERNATIVE DISPUTE RESOLUTION (ADR) COMPULSORY? BY: EDIZ YETISMIS, U.K. Ediz Yetismis interviews barrister and industry

to treat a party’s unreasonable refusal of ADR as

expert on dispute resolution, Rahim Shamji, to

poor conduct when determining costs.[7] The

discuss the future of ADR. Mr Shamji is an

court may also award an adverse costs order

experienced mediator and CEO of ADR ODR

against a party who unreasonably refuses to

International Limited, a global provider of

engage in ADR, or causes inordinate delay.[8] If a

negotiation, mediation and arbitration training.

party ignores a request for ADR, then the case of PGF II SA v OMFS Co 1 Ltd[9] demonstrates that

What is Alternative Dispute Resolution?

such silence in the face of a reasonable request

ADR is any type of settlement or determination

from another party to engage in ADR will

used by parties to resolve legal issues that could

generally be considered unreasonable and will

have otherwise been addressed through civil

incur costs.[10] However, a refusal to conduct ADR

litigation.[1] Historically, ADR has been used to

will only be one of many factors a judge will

address dissatisfaction with the litigation process,

consider as part of their discretionary judgement

with a focus on providing solutions that litigation

to award costs.[11]

cannot offer.[2] An example of this is that ADR allows parties to agree to settle their dispute in

Since Halsey[12] a number of notable cases have

return for commitments a judge could not order,

departed from the rule laid down by Lord Justice

such as an agreement between the parties to

Dyson.

conduct future business together.[3]

determined that both parties could be ordered to

Lomax

Lomax[13]

the

court

engage in ADR in the form of Early Neutral ADR and the courts

Evaluation (ENE), even though only one party

The current stance of the court on ADR can be

agreed to it.[14]

found in Halsey v Milton Keynes General NHS Trust.[4] In this case Lord Justice Dyson sets out

Furthermore, the 2021 report by the Civil Justice

the golden rule, that courts should strongly

Council looked into the reasoning in Halsey[15]

encourage parties to consider ADR but cannot

and found that compelled ADR was likely to be

require them to do so. His rationale was that

compatible with human rights.[16] Such a finding

compulsory ADR would be an ‘unacceptable

is supported by developments in other ECHR

obstruction’[5] on a party’s right to have their case

signatory countries such as Greece[17] and

heard by the court and so would violate their right

Belgium,[18] which have introduced elements of

to a fair trial.[6]

compulsory ADR without successful challenges in the European Court of Human Rights.[19]

One way the court has encouraged ADR has been

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ISSUE 3

Looking towards the future of ADR

courts and Government, though if they were

While the law at current still prevents the court

committed mandatory ADR could arrive within 24

from compelling parties to engage in ADR, recent

to 36 months.[27]

developments have suggested that Parliament intends to introduce obstructions to the court

The first stage is to tackle the misconceptions

system for those who don’t conduct ADR in

about ADR that new barristers face, by exposing

specific types of disputes. One example of this is

them to ADR before they have qualified as

the Commercial Rent (Coronavirus) Act,[20] which

barristers. Integration of ADR information into

received Royal Assent in March. This act aims to

professional programs, such as the BPTC, could

address business rent debts caused by the

help ensure that more barristers are equipped to

pandemic

Lord

deal with day-to-day civil cases, all of which

Grimstone highlights, the ‘voluntary nature of the

already require some knowledge on ADR to advise

code’[21] in favour of a period of binding

a client. This is because within all civil cases, prior

arbitration.

to serving the claim form, an advocate must

and

specifically

change,

inform the client of ADR so the party may The binding arbitration period prevents landlords

consider whether to proceed to serve their claim

who are owed protected rent from ‘making a debt

or engage in ADR.[28]

claim in civil proceedings’[22] for six months after the law is passed, whilst providing arbitrators

Moving to the second stage, once lawyers have

approved by the Secretary of State to hear those

dispelled the misconceptions on ADR and had

claims within the same period.[23] This could be

experience performing it, they may be more

seen as an obstruction to the right to a fair trial

persuasive in presenting ADR as an option for

discussed in Halsey,[24] as it’s effect would be to

businesses involved in litigation. In addition, the

force landlords to either wait six months or

role of the courts at this stage is vital as judges

conduct ADR. To find out more, I spoke with Mr

should use their knowledge and skills to promote

Shamji on the path ahead for ADR. His comments

and adapt ADR mechanisms to suit the changing

have been edited for clarity.

needs

businesses.[29]

For

example,

the

restrictions of the covid lockdowns have led to an A discussion with Mr Shamji on the roadmap of

increase in the number of new jobs which provide

ADR “How do you see the future of ADR

the option to work from home[30]. To reflect this,

progressing in relation to compellability?”[25]

courts should help promote and help organize effective online versions of ADR that businesses

In asking what the future holds for ADR, Mr

and individuals can use.

Shamji highlighted three key stages that must occur before mandatory ADR could be accepted

The final stage in preparation for mandatory

on a wider scale within the UK. He also stated that

arbitration legislation is to promote ADR to the

the speed at which these stages are completed

business community.[31] This would require the

would be ‘driven by the appetite’[26] of both the

government to take a number of active steps to

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convince

businesses

However, the notion that ADR, compared to

mandated. The key step would be to lead by

litigation, does not pay well is not quite true.

example.[32] The Government should have a clear,

Looking at the most recent statistics for both

coherent and unified voice promoting ADR at

barristers and mediators we can see on average a

home and on the world stage,[33] by advertising

barrister

itself as a global dispute resolution hub much in

calculating the average mediators earnings is not

the same way France has.[34] One way to show

as simple, as mediations can often be quicker than

this voice could be to incorporate arbitration

cases, so a key determining factor is how many

clauses into government contracts, requiring that

mediations one can do a year. For expedient

disputes

commercial case mediators, who perform on

are

Alternatively,

that

settled they

could

ADR

should

ISSUE 3

arbitration[35]. include

Conflict

makes

£188,641.[39]

Conversely,

average 30-40 cases per year,[40] their average

Avoidance Boards within their larger government

earnings are £268,750 per year.[41]

contracts with companies to handle any disputes before they reach court.[36]

Another key reason for hesitancy in introducing mandatory ADR is that in international disputes

“Why has this area of the law been slow to develop

clients may worry about the enforcement of ADR.

until recently?”[37] Speaking with Mr Shamji he

In particular clients may be concerned about

was able to identify a number of key reasons why

holding the other party accountable if they

progress towards routine use of ADR has been

attempt to breach the agreements reached in

slow, including the lack of integration of ADR

ADR, as they are often enforced only under a

within legal studies. As he explained, many up-

contract and not a court order which requires

and-coming barristers will rarely touch on ADR

additional court filings.[42] However, as Mr Shamji

during their studies and as such will not be

points out, these concerns are being addressed

properly trained in aspects such as mediation

through international measures that aim to make

until later in their career. This leads to a logistical

the process of enforcing ADR easier, such as the

problem for proponents of mandatory ADR, as

Singapore Convention[43] which has increased the

this would bring an influx of ADR cases at a time

international enforceability of mediations.

when there are not enough lawyers adequately trained in this area.

The convention requires national courts in 55 signatory countries to enforce international

Whilst more work would ordinarily lead to more

settlements from countries under the convention

people training in ADR to deal with the workflow,

without conducting fresh litigation on the dispute,

as Mr Shamji explained, this situation exposes a

except

misconception about incentives ADR offers. The

enforcement

core of this perception can be summed up by the

confidence in the enforcement of ADR, as it

way that ADR is sometimes colloquially referred

removes the fear that the other party will simply

to in legal circles as “Alarming Drop in Revenue”.

remain out of jurisdiction to evade paying money

[38]

if a party decides to pursue ADR.

limited

circumstances.[44]

mechanism

may

This

strengthen

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Conclusion

(29) ‘Securing the UK’s position as a global disputes hub: Best practice lessons between Singapore and the UK’ (All-Party Parliamentary Group for

The future of ADR appears to be one moving in the

direction

ISSUE 3

mandatory

use,

but

Alternative Dispute Resolution, 2020)

that

<https://www.ciarb.org/media/12067/appg-report_digital.pdf> accessed 12

movement is not certain. It will take a joint and

February 2022, 11

multi-stage effort, requiring support from the

homeworking, UK Business and individual attitudes towards the future of

(30) Abi Casey, ‘Business and individual attitudes towards the future of

judiciary, education system and government to

homeworking, UK: April to May 2021’ (Office For National Statistics, 14 June

truly persuade businesses that to mandate ADR

<https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/em

2021 ) ploymentandemployeetypes/articles/businessandindividualattitudestoward

would be in their best interests.

sthefutureofhomeworkinguk/apriltomay2021#data-sources-and-quality> accessed 19 March 2022, Figure 3 (31) Interview with Rahim Shamji, Chief Executive Officer and barrister,

(1) Susan Blake, Julie Browne and Stuart Sime, The Jackson ADR Handbook

ADR ODR International Limited and Gatehouse Chambers respectively

(2nd edn, OUP 2016) 2, para 1.02

(online via Teams, 18 October 2021)

(2) Marcus Stone, Representing Clients in Mediation (Butterworths 1998) 6

(32) ibid

(3) Emily Allbon and Sanmeet Kaur-Dua, English Legal System (20th edn,

(33) ‘Securing the UK’s position as a global disputes hub: Best practice

Pearson Education Limited 2019) 692, para 25.2.4

lessons between Singapore and the UK’ (All-Party Parliamentary Group for

(4) [2004] 1 WLR 3002 (CA)

Alternative Dispute Resolution, 2020)

(5) Ibid 3007, para 9 (Dyson LJ)

<https://www.ciarb.org/media/12067/appg-report_digital.pdf> accessed 12

(6) European Convention on Human Rights 1950 (ECHR) art 6; Human

February 2022, 8

Rights Act 1998, art 6

(34) Greg Lascelles, ‘France’ in Olivier Laude, Benoit Renard and Lucie

(7) The Civil Procedure Rules 1998, Pt 1, rule 44.2(4)(a)

Saadé-Augier (eds) in Litigation & Dispute Resolution Laws and

(8) Thakkar v Patel [2017] 2 Costs LR 233 (CA) 242, para 29 (Jackson LJ)

Regulations (ICLG, 2022)

(9) [2014] 1 WLR 1386 (CA)

(35) 'Securing the UK’s position as a global disputes hub: Best practice

(10) Ibid 1395, para 34 (Briggs LJ)

lessons between Singapore and the UK’ (All-Party Parliamentary Group for

(11) Gore v Naheed [2017] 3 Costs LR 509 (CA) 512, para 49 (Patten LJ)

Alternative Dispute Resolution, 2020)

(12) [2004] 1 WLR 3002 (CA)

<https://www.ciarb.org/media/12067/appg-report_digital.pdf> accessed 12

(13) [2019] 1 WLR 6527 (CA)

February 2022, 13

(14) Ibid 6532, para 32 (Moylan LJ)

(36) Ibid 16

(15) [2004] 1 WLR 3002 (CA)

(37) Interview with Rahim Shamji, Chief Executive Officer and barrister,

(16) HL Deb 27 January 2022, vol 818, col 92GC

ADR ODR International Limited and Gatehouse Chambers respectively

(17) Commercial Rent (Corona‘COMPULSORY ADR’ (Civil Justice Council,

(online via Teams, 18 October 2021)

June 2015) <https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-

(38) Ibid

Justice-Council-Compulsory-ADR-report-1.pdf> accessed 12 February 2022

(39) ‘Income at the Bar – by Gender and Ethnicity Research report’ (Bar

(18) Law No 4640/2019 (Greece)

Standards Board, February 2022)

(19) Modifications diverses du Code judiciaire en vue de promouvoir des

<https://www.barstandardsboard.org.uk/uploads/assets/af6c9471-1328-

forms alternatives de résolution des litiges 2018 No. 53519 (Belgium)

4f4d-8f1baf5adb349d64/Income-at-the-Bar-by-Gender-and-Ethnicity-

(20) Masood Ahmed, ‘A more principled approach to compulsory ADR’

2022.pdf> accessed 12 February 2022, 15

(2020) 4 Journal of Personal Injury Law 577, 580

(40) Graham Massie, ‘The Ninth CEDR Mediation Audit’ (Centre for

(21) 2022

Effective Dispute Resolution, 2021) <https://www.cedr.com/wp-

(22) virus) Act 2022 Pt 3, s 23(1)(a)(i)

content/uploads/2021/05/CEDR_Audit-2021-lr.pdf> accessed 12 February

(23) Ibid Pt 2, s 9(2)-(3)

2022, 8

(24) [2004] 1 WLR 3002 (CA)

(41) Ibid 28

(25) Interview with Rahim Shamji, Chief Executive Officer and barrister,

(42) Arbitration Act 1996, s 66(1) and (2)

ADR ODR International Limited and Gatehouse Chambers respectively

(43) United Nations Convention on International Settlement Agreements

(online via Teams, 18 October 2021)

Resulting from Mediation (entered into force 12 September 2020)

(26) Ibid

(Singapore Convention)

(27) Ibid

(44) Ibid art 5

(28) Lord Justice Coulson, White Book Civil Procedure 2021, vol 1 (Sweet & Maxwell 2021) 2664, C1-006 para 8

2022

THE AOI JOURNAL

EVOLVE BY: ZAFIRA HUDANI, ATLANTA

We are all humans Thinking is a large part of what we do Our beliefs, thoughts and ideas may change over time It is comforting to know that things are never set in stone Communication is the process that assists in bringing about the new As long as we communicate, we know there is a chance for us to evolve And the possibility that our issues may be resolved

ISSUE 3

THE AOI JOURNAL

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ADR REMEDIES FOR PROTECTION OF FUNDAMENTAL RIGHTS IN INDIA BY: MIHIR GOVILKAR MEDIATION INITIATIVE, INDIA India has been blessed with one of the greatest

faith of the common man in the Indian judiciary

Constitutions in this world. It is also the longest

that this seemingly insurmountable backlog of

of any sovereign nation. It draws inspiration from

cases is dealt with swiftly, but efficiently and

countries like the UK, USA, Ireland, France,

effectively.

Australia

and

Canada.

Enshrined

the

Constitution are the Fundamental Rights of the

This brings us to the concept of ADR, which is not

citizens of India. Provisions are also made for the

new, but it is relatively new, as compared to

protection of these rights. Part III of the

litigation. In India, ADR consists primarily of Arbitration and Mediation. There are other modes

Constitution of India lays out the Fundamental

as well, like, neutral evaluation, negotiations,

Rights and provides for their protection through

expert determination, adjudication, etc., but

remedies available through the Supreme Court of

which do not find much popularity. In the case of

India and through the High Courts of different

Afcons Infrastructure & Anr. v. Cherian Varkey

States. Provisions such as these, which are a part

Construction Company Pvt. Ltd. & Ors. [2010 (8)

of the basic structure of the Constitution cannot

SCC 24], the Hon’ble Supreme Court of India held

be overcome or sidelined by anything or anyone.

that the terms ‘mediation’ and ‘conciliation’ are

Constitutional amendments can be carried out,

synonymous to each other and thus, the confusion

however, as laid out in the famous case of

regarding this was put to rest. It was also stated

Kesavananda Bharati v. State of Kerala [(1973) 4

that resorting to ADR processes is necessary to

SCC 225], decided by the Hon’ble Supreme Court

give speedy and effective relief to the litigants and

of India in 1973, the Supremacy of the Constitution

to reduce the pendency in and burden upon the

is a part of the basic structure or framework of

courts.

the Constitution of India.

There have also been several Judgements over the

As of March 02, 2022, there are a total of 70,154(1)

past few years clarifying various provisions of the

matters pending before the Hon’ble Supreme

Arbitration & Conciliation Act, 1996. However, it

Court of India. Of these, 422 are Constitution

does raise the question as to why, even after more

Bench matters. Furthermore, as per the e-courts

than 20 years, the Courts of India are still

website(2), there are over 5.7 million pending cases

clarifying the provisions of the 1996 Act. An Act,

in the High Courts and over 42 million pending

which was meant to lessen the burden of the

cases in the District Courts of India. These figures

Courts

are alarming, and it is of immense importance for

resolution to disputes, has more often than is

the health of the judiciary and for retaining the

comfortable to note, landed the disputing parties

and

provide

speedy

and

effective

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ISSUE 3

Judge of the Supreme Court. A similar provision is

in the Courts.

enshrined in Article 224-A for High Courts. It The other mode of ADR that is rising to

would be an interesting experiment to carry out

prominence, slowly but steadily, is that of

whether the provisions of Article 128 and Article

Mediation. As recently as December 2021, the

224-A can be invoked to establish certain benches

Mediation Bill No. 43 of 2021 was tabled in the

of the Supreme Court of India as well as the High

Rajya Sabha and is currently with the Standing

Courts, to only hear matters relating to the

Committee. Mediation as has been very succinctly

Fundamental Rights of Indian citizens. This method makes use of the provisions of the

put in the Afcons case (supra), is a method of non-binding

dispute

resolution

with

Constitution of India and therefore, technically,

the

may not be viewed as an ADR method. However, it

assistance of a neutral third party who tries to

is an alternative form of dispute resolution within

help the disputing parties to arrive at a negotiated

the court system. It may be argued that this form

settlement.

is not very different from the subject matter assignments that the Chief Justice, whether of the

Having gone through this discussion about the

Supreme Court or the High Courts, makes on a

various aspects of dispute resolution as they

regular basis for sitting Judges. The fundamental

pertain to India, the primary question that arises

difference here is that the assignments here

is, when any Fundamental Rights are infringed

would be made for retired Judges.

upon or are about to be infringed, can the aggrieved party make use of any ADR method?

Another option is for the establishment of an adjudicating body by enacting a statute. This

The answer to this is not a simple yes or no. The

authority shall be composed of retired Supreme

Constitution is supreme. The Supreme Court and

Court or High Court judges, which will hear

the High Courts alone have the power to

matters

determine issues relating to the Fundamental

relating

Fundamental

Rights

citizens, where the matters can be decided solely

Rights of the citizens of India. Thus, the use of

on the basis of facts and no interpretation of law is

Arbitration for redressal of grievances related to

required. If any case is filed before this authority

the Fundamental Rights cannot be made.

that requires any interpretation of the law to decide the vires, then a reference can be made to

There

Constitution;

interesting as

per

provision

Article

128

the

the appropriate High Court or the Supreme Court.

Constitution, a retired Supreme Court Judge or

Now, coming to Mediation, in my understanding,

anyone who is qualified to be appointed as a Judge

Evaluative Mediation can be utilised in addressing

of the Supreme Court, can be appointed to sit and

grievances

act as a Judge of the Supreme Court and shall be

Fundamental

entitled to such allowances as may be ordered by

Fundamental Rights of the citizens of India would

the President of India, but shall not otherwise be a

Rights.

the The

infringement

THE AOI JOURNAL

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ISSUE 3

usually be at the hands of the State as defined

given the fact that the practice of it is not properly

under Article 12 of the Constitution. Through

understood, legal practitioners are wary of

Evaluative

recommending it.

Mediation,

the

Mediator

can

effective in explaining to the body/official/ institution/organisation State, the legal position

Preserving the Fundamental Rights is paramount.

and

If the current system which is in place for the

also

help

evaluating

whether

any

Fundamental Rights have been infringed upon or

redressal

not. If the State comes to the conclusion after

Fundamental Rights, is incapable or inadequate in

going through this process, that its decision,

delivering justice in time, then it is tantamount to

either already made or about to be made, has or

the finalisation of the infringement of the

may infringe upon any Fundamental Rights, it can

Fundamental Rights. As it is said, ‘justice delayed

take such action as to rectify the situation or to

is justice denied’.

grievances

avoid such an occurrence. (1) https://main.sci.gov.in/statistics

The general perception about Mediation is that it

(2) https://ecourts.gov.in/ecourts_home/

only works for family and particularly for matrimonial disputes, making it less popular. Its role in commercial disputes or in any other domain

not

very

well

known

even

appreciated. There is a push from certain sections of the Judiciary for Mediation, but this push needs to be stronger, and from the entire Judiciary. Not many cases go to Mediation. Recently, I suggested Mediation in a commercial litigation, but the Judge dismissed it as not being applicable and useful to that particular matter. In my view, that dispute was perfect for mediation. I have also seen members of the Bar being averse to Mediation as they do not see it as an effective means of resolving a dispute and they are certain that the dispute is beyond any discussion. As for the common man, the existence of Mediation itself is not generally known and they also have no idea who or where to turn to, to seek a resolution through Mediation. It’s not promoted enough to become a known form of ADR and

infringement

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ISSUE 3

MEDIATION: WHEN IS IT THE BEST PROCESS CHOICE? BY: NIKOS TRIGKAS, GREECE ‘An ounce of mediation is worth a pound of

need to take into consideration how mediation

arbitration and a ton of litigation’, as articulated

works. The following example illustrates the

by Joseph Grynbaum.(1) The extent to which this

mechanism of mediation: two companies (A and B)

statement reflects the truth depends largely on

sought to receive an entire cargo of oranges, both

the broader context of the particular dispute. A

presenting a set of shipping documents. Their

Cornell University sponsored survey of 1,000 U.S.

lawyers turned to a mediator, who focused on the

corporations

the

interests of each company, rather than its

respondents chose mediation over other third-

positions. A needed the oranges to produce fruit

party

dispute

juice, whereas B wanted them for adding orange

resolution (ADR).(2) Of these respondents, 19%

zest to cookie dough. Interest-based negotiations

accepted that they used mediation (rather than

took place, so that the companies manage to reach

traditional litigation) frequently, 43% reported

a mutually acceptable outcome.

neutral

indicated facilitated

that

87%

alternative

they used mediation occasionally and 30% used this procedure rarely.

If this dispute had been submitted to arbitration, the arbitrator would most likely decide that each

In Greece, Law 4640/2019 has introduced the

company should receive ½ cargo. If this case had

framework of the ‘mandatory initial mediation

been

session’, which applies to certain civil and

presenting all necessary shipping documents

commercial disputes. In this session, the mediator

would ‘win’ but the other one would ‘lose’. That

informs the parties of the mediation process, its

said, mediation can offer no general panacea, so

basic principles and the possibility of using ADR.

its scope and potential need to be carefully

The Greek Minister of Justice stated that 15% of

determined on a case-by-case basis.

decided

the

court,

the

company

the cases, which fall under the scope of that session, are resolved through mediation.(3) The

The mediator’s intervention is likely to change the

Minister added that 75% of the cases, which are

dynamics of the interaction of the parties in the

voluntarily referred to mediation, result in an

following cases: a) all parties seek to identify and

agreement between the parties.(4) Since only 3% of

resolve conflict at an early stage, before the

the cases are freely sent to mediation,(5) it

situation escalates further; b) parties have a need

becomes apparent that the Greek are generally

for

not persuaded of the usefulness of mediation.

relationship for the future; c) they wish to protect (in

To decide if mediation is your best option, you

or a

interest

confidential

preserving

procedure)

their

good good

reputations or trade secrets; and d) they prefer to

2022

THE AOI JOURNAL

ISSUE 3

have increased control over the process and

mediation should be chosen. However, a simple

jointly develop options for a solution.

rule of thumb is that mediation can be the best option if all parties truly want to work out a

Further, mediation can generally be valuable in

solution on a non-precedent setting basis.

advancing a case toward a mutually beneficial resolution in the following situations: e) there

(1) OnCourse (2012), available at

exists no significant imbalance of power between

http://www.oncourse.com.au/team.php?

the disputing parties that would affect a party’s

member=Joseph%20Grynbaum, last seen on 14/03/2022.

ability to self-determine; f) the disputants are

(2) See Drew Mallick, U.S. Corporations Should Implement In-House Mediation Programs Into Their Business Plans To Resolve Disputes

prepared to act in good faith to settle the issue(s)

(Harvard Negotiation Law Review, 2009), available at https://www.hnlr.org/2009/03/us-corporations-should-implement-

in dispute; g) they are primarily interested in

in-house-mediation-programs-into-their-business-plans-to-

achieving some sort of a compromise solution

resolve-disputes/, last seen on 14/03/2022.

instead of a win-lose outcome; and h) the conflict

(3) See Spyridoula Georgiou, Mediation in Greece Today: Facts and

has not escalated to the degree that the emotions

Concerns (2020), available at http://www.justina.gr/φιλοξενίααπόψεων/η-διαμεσολαβηση-στην-ελλάδα-σήμερα/, last seen on

of the parties would be so strong as to prevent a

16/03/2022.

settlement.

(4) Ibid. (5) Ibid.

Τhere are no hard and fast rules regarding when

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YOUNG MEDIATOR - FINDING INNER PEACE BY: VAIBHAVI KHUTHIA & SHIKHA MEHRA, INDIA The journey of an advocate isn't an easy one. It

that

follows

takes years of academics and then one joins the

experience beyond words. The integrity of the

profession. Rightly so it is called practice and one

mediator which is required to meet the highest

keeps at it and there is always scope of

standards

betterment. Mediation is an offspring of conflict

practised at all times. This will then help a

management and is the sister of litigation.

mediator stay connected to the profession as well

Meditation requires more patience and a steady

as maintain a balance in his life, which is achieved

mindset to be pursued as a profession.

through finding tranquillity. Many lawyers and

Finding inner peace is a very difficult thing in

process of mediation occasionally tend to view a

successful

professional

mediation

ethics

should

other professionals who are unfamiliar with the request to resolve the case via mediation, as an

today's world. As a mediator, it is a joyous

attack on their professional dignity.

moment when one is able to help others resolve a conflict, the experience is invaluable. Fulfilment is

regarded as an inward state. It can't be pursued

lawyers,

are

acquainted

with

legal

processes, and we consider it our responsibility to

externally. We act to express our fulfilment rather

fight for our client's rights and demands. We often

than to acquire it. We behave in order to

overlook our intrinsic ability to resolve conflicts

celebrate, not to pursue, our inner fullness. The

through communication as a result of our vast

satisfaction one derives by being able to resolve

knowledge and experiences. When disagreements

the dispute thereby contributing one less dispute

turn into legal battles there is no or hardly any

in the world whilst making it a better place to live,

communication between the parties for the

peacefully is exactly what finding inner peace

damage to be bridged, leaving little room for

means for a young mediator. Being a mediator is a

collaboration.

lifelong learning process and not an easy one as it requires dedication, mental strength, as well as

It is crucial to recognise how important it is to be

passion and a comprehensive understanding of

able to communicate effectively and respectfully

important principles of mediation that effectively

makes a mediator skilful.

determine

how

people

interact

the

workplace and in the community and how valuable it is to overcome unclear and conflictive

As a mediator, it is simpler to connect to peace

circumstances. Instead of being guided by biases,

than as a litigation expert. In a lawsuit, one party

presumptions, prejudices and preconceptions that

either wins or loses, but in mediation, both parties

hinder and disturb human relationships, a

benefit, making the mediation effective and the

passionate mediator envisions a method to help

parties satisfied. The mediator's goal of being able

people to speak consciously and compassionately

to assist others is fulfilled, and the contentment

while respecting boundaries. At the end of the

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We, as mediators, believe in the potential of

day, it's all about maintaining relationships.

meaningful,

constructive,

conscious,

and

The zeal for helping others is genuinely aligned

compassionate dialogues to reduce unintended

with the purpose of mediation. A mediator not

effects, overcome uncertainty and disruption, and

only helps to reduce the burden of the court but

enhance our working systems so that wellbeing is

focuses on the problem itself that parties tangle

expressed

themselves into. It’s a platform where a person is

Mediation is a method of reducing interpersonal

heard and helps the parties to focus on their

frictions and generating caring and meaningful

underlying interest in the dispute. As a mediator,

conversations

a person is not only trained to look at the problem

individuals feel in every eco-system.

everywhere

that

take

the

into

community.

account

how

and help parties resolve it, but is also skillful in the art of communication. The mediator's skill lies

“Large streams from little fountains flow,

in moving the parties from a position based talk,

Tall oaks from little acorns grow”.

to the possibility of ideas for resolving the dispute, understanding their body language, emotions, etc.

As it’s quoted in the poem by David Everett the

As humans, we never stop changing and evolving.

learning is no matter the magnitude of the

This only makes the job of the mediator more

conflict, genuine hard work always pays off and is

challenging as it motivates the mediator to find a

reflected in our jobs as a successful mediator,

way to facilitate a dialogue space for the parties.

eventually.

For the mediators, it has been a meaningful path and helped them find peace within themselves as well as aligning with their purpose to be in the legal profession.

2022

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TRADITIONAL ALTERNATIVE DISPUTE RESOLUTION: A SPRING OF RESTORATIVE CRIMINAL JUSTICE IN KENYA BY: SAMSON MUCHIRI, KENYA Without doubt, dispute resolution mechanisms

parties, including substantive justice for the

other than litigation avail quick, flexible, more

victim. However, criminal litigation in Kenya often

satisfying and, sometimes, more substantive

serves to remedy the societal harm through

justice.(1) The situation is no different in Kenya.

objectives such as retribution, rehabilitation, and

Mechanisms such as negotiation, mediation,

deterrence, and ordinarily, not the restitution of

reconciliation, and others allow parties autonomy

the harmed individual.(5)

over their cases and enhance the acceptability of their

outcomes,

while

maintaining

Fortunately, refuge can be taken in the law to

fruitful

remedy these insufficiencies. The Constitution of

relations between the parties to a case.(2) Of these

Kenya requires judicial authority to be guided by,

alternative dispute resolution methods, traditional dispute

resolution

mechanisms

such

among others, the principle of alternative forms of

dispute

negotiation and mediation, unlike litigation, have victims. To achieve this aim, this paper limits its

dispute

accused person met the deceased family under Islamic law and rituals. In this context, they

paper advocates for an increase in the use of

performed rituals and the accused person paid the

traditional dispute resolution mechanisms in

aggrieved family compensation in terms of

resolving criminal disputes as far as possible, to

camels, goats and other traditional ornaments.

best meet the ends of criminal justice. justice

the

form

and

High Court of Kenya. In this murder case, the

resolution

mechanisms in law and in practice. Thus, this

Restorative

mediation

of Republic v Mohamed Abdow Mohamed before the

insufficiencies of criminal litigation and the traditional

In application, one can refer to the criminal case

brief assessment to the situation in Kenya: the of

such

traditional dispute resolution.(6)

the potential to avail restorative justice to criminal

potential

resolution

Following this settlement, the Director of Public of

Prosecutions withdrew the matter with the

justice

approval of the High Court. Notably, had the case

concerned with repairing both the social and the

proceeded on litigation and the accused person

value harm caused by criminal action.(3) It

found guilty, he would have been sentenced

involves a meeting of the parties involved for the

without any form of compensation to the family.

sake of decision-making, reparation to repair both social and value harm, and transformation of

From the above example, traditional dispute

oneself and the society after the process to restore

resolution mechanisms are befitting because they

harmony.(4) This paper argues that this is the

adopt the political approach: they focus on the

ideal approach as it caters for the interests of all

underlying causes of conflict and on satisfying the

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ISSUE 3

mutual needs of parties while allowing the parties

clinical isolation of the formal mechanisms of the

autonomy over the choice of the third party

criminal justice system. To ensure efficiency and

involved,

congeniality,

the

Consequently,

process, this

and

approach

the

outcome.(8)

ensures

the

formal

procedures

and

institutions would be useful in acknowledging and

acceptable and durable outcomes from the

endorsing the determinations of the traditional

processes.(9) Due to their dynamic nature and

mechanisms for enforcement.

structural adaptation to the conflict at issues, these informal mechanisms are highly accessible

In conclusion, it is important, where applicable, to

and recognised.(10) These features are particularly

promote the use of informal traditional dispute

important in criminal cases where victims of

resolution methods, against the backdrop of the

offences are left to accept justice in the form of

role they play in availing substantive restorative

imprisonment of the accused person and fines

justice to both the victim and the society in a

paid to the State. Traditional dispute resolution

quick, acceptable, and durable manner.

mechanisms would address the complaint of these victims more accurately while availing them more

(1) Kariuki Muigua Kariuki Francis, Alternative Dispute Resolution, Access

appropriate justice.

to Justice and Development in Kenya, 1(1) Strathmore Law Journal, June 2015, 3.

Nevertheless,

equally

important

(2) Kariuki Muigua, Empowering the Kenyan People through Alternative

Dispute Resolution Mechanisms, CIArb Africa Region Centenary

acknowledge that these mechanisms cannot apply

Conference 2015, held on 15-17 July 2015, 15.

strictly to all individuals in all cases. An attempt to enforce

traditional

dispute

(3) Englash, Albert. “Creative Restitution: A Broader Meaning for an Old Term.” Journal of Criminology and Police Science, 1957-58a, 620.

resolution

(4) Johnstone, Gerry, and and Daniel van Ness. “The Meaning of Restorative

mechanisms stricto sensu is likely to conflict with

Justice.” In Handbook of Restorative Justice, by Gerry Johnstone and Daniel

present formal mechanisms and, potentially, to

van Ness. Cullompton: Wilan Publishing, 2007a, 6, 11.

violate

(5) Justice N. R. Ombija, Restorative Justice and victims of crime in Kenya,

the

constitutional

prohibition

KenyaLaw Weekly, < http://kenyalaw.org/kl/index.php?id=1895> Accessed

repugnance to justice and morality.(11) To avoid

on 13 March 2022.

such counterproductive results, the mechanisms

(6) Constitution of Kenya, 2010, Article 159(2)(c).

would work in criminal cases which involve an

(7) [2013] eKLR, Criminal Case 86 of 2011.

active complainant. These are cases where the act

(8) Kariuki Muigua, Court Sanctioned Mediation in Kenya – An Appraisal,

of an accused person injures an individual or their

Kenya, Chapter 4 (Resolution and Settlement), pp. 56-65. (Nairobi,

March 2015, 6; See also K. Muigua, Resolving Conflicts through Mediation in Glenwood Publishers, 2012).

property.(12)

(9) Kariuki Muigua, Court Sanctioned Mediation in Kenya – An Appraisal, March 2015, 22.

In addition, both the complainant and the accused

(10) Kariuki Muigua, Court Sanctioned Mediation in Kenya – An Appraisal,

person ought to be subjects of the traditions in

March 2015, 20; P. Kameri-Mbote, “Towards Greater Access to Justice in

question, and freely consent to the application of

Environmental Conflicts in Kenya: Opportunities for Intervention,” =

the traditional dispute resolution mechanisms.

2005-1.

International Environmental Law Research Center (IELRC) Working Paper

This would avoid unjust coercion, and guarantee

(11) Constitution of Kenya, 2010, Article 159(3)(b).

acceptability of the determination since each

(12) Olukoye Anjili Michael, Beyond the Stand: It is Time to Practicalize and

party would consider the results just. The

Kabarak University, 2018).

Prioritize Restitutive Justice for Victims of Criminal Offences, (LLB thesis,

traditional mechanisms cannot be applied in

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WHAT’S IN A NAME? BY: TONY N GUISE, U.K. Alternative Dispute Resolution or ADR is well-

This led me to consider whether any of this really

known (amongst lawyers) as a term to describe

matters. There was much activity on LinkedIn

processes of resolving disputes in the workplace,

suggesting yet further abbreviations - some

for separating families and civil claims and in

serious and others, perhaps, less so…

many other settings too. These processes use a third party neutral or neutrals and it can be

MDR - Mediated Dispute Resolution

determinative or facilitative. Determinative types

LDR - Litigated Dispute Resolution

include adjudication and arbitration. Whilst the

ADR - Arbitrated Dispute Resolution

most widely known of the facilitative kind is

CDR - Conciliated Dispute Resolution

mediation. In England and Wales there are moves

(All the above thanks to W D Thompson)

afoot to make ADR mainstream by dropping the

ADR - Automated Dispute Resolution

“Alternative”, putting it between brackets, thus:

(once LegalTech and AI had their way,

[A]DR and making the use of these processes

according to Phillip Cawrey)

obligatory or quasi-obligatory in the pre-action

FDR - Facilitative Dispute Resolution

stage.

(not the dead President) (Martin Medforth) Amidst all this change the English and Welsh Commercial

Court

recently

changed

N-CDR - Non-Court Dispute Resolution

the

(Nik Carle)

abbreviation ADR to NDR, or Negotiated Dispute

NDR - Non-adjudicative Dispute Resolution

Resolution. The use of NDR appeared in the 2022

(Adeyemi Akisanya)

edition of the English and Welsh Commercial Court Guide.

Would you like to become a Civil/Commercial Mediator?

www.adrodrinternational.com/uk-civil-commercial-mediation-training

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ISSUE 3

History

Does it matter?

The origin of this debate appears to stem from my

speech to the February 2018 Civil Justice Council

abbreviation muddies the recognition of brand

(CJC) ADR Workshop where I suggested there was

“ADR”. Yet outside the legal professional bubble

nothing alternative about ADR and called for the

most citizens (having nothing to do with Courts)

adjective “Alternative” to be abandoned.

are unaware of ADR!

This was picked up by Sir Geoffrey Vos early in his

The CJC’s Report “ADR

tenure as Master of the Rolls in a speech given to

published in November 2018 made this clear in

Hull University at the re-launch of their Mediation

para 6.2 when it found “there is still ignorance of the

Clinic:

existence and opportunities offered by ADR...”

“There is perhaps a linguistic problem: Why do we

However, “68% of all litigants contacted said that

keep

Dispute

they

proceedings if at all possible” which is where the

integrated whole. ….There is nothing alternative

focus should be: making mediation available as an

about either mediation, early neutral evaluation, or

integrated/mainstream part of the journey. That’s

judge led resolution.” (para 37 of The Relationship

the way the number of mediations will increase

between Formal and Informal Justice given to Hull

providing a better civil justice system and an

University, virtual on Friday 26 March 2021)

attractive career path for mediators. None of that

Resolution?

talking

about

Dispute

Alternative

resolution

should

has

been

would

suggested

have

that

and

preferred

changing

Civil

avoid

the

Justice”

Court

can be all bad, can it? I am sure Mediators would not grumble about mediation taking place in every dispute. Tony is the Director of DisputesEfiling.com Limited

There have been unsuccessful name changes

(DEF) which is the provider of Cloud based platforms

Royal Mail became Consignia in 2001 which was

for the management of mediations and other forms of

hastily

Customers

dispute resolution. Tony is a Past President of the

wondered what was misleading about post and

London Solicitors Litigation Association, he speaks and

office.

writes regularly on issues concerning civil justice

changed

back

2002.

reform in England and Wales.

There have also been successful re-names Subway used to be called Pete’s Super Submarines but became Subway in 1968. Now 42,000 instantly recognisable outlets world-wide bear the name “Subway”.

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CONSTRUCTION ADJUDICATION BY: SEAN GIBBS, U.K. Across the globe arbitration and mediation have

can be referred to a sole adjudicator that has been

become the norm for resolving disputes in many

appointed by an Adjudicator Nominating Body or

sectors of industry. In the United Kingdom

the parties by consent. There are currently

statutory adjudication has become the most

around twenty Adjudicator Nominating Bodies in

common way to resolve construction disputes.

the United Kingdom, making around 2,000 nominations per year. The top seven in size of

Adjudication has proved to be very popular in the

nominations being RICS, TECSA, TECBAR, RIBA,

United Kingdom. Since its introduction the

CIARB, ICE and UK Adjudicators, their nomination fees range from the free nomination service

number of disputes has grown steadily to in

offered by UK Adjudicators to around £450.00

excess of 2,000 per year and most parties accept

charged by the RICS. The professional disciplines

the decision of the adjudicator and pay up with

of those acting as adjudicators were in 2019

less than 10% of decisions going on to be enforced

Lawyers 43.4%, Quantity Surveyors 34.8%, Civil

or even resolved by arbitration or litigation. It has

Engineers 7.9%, Architects 6.9%, Construction

meant less matters being resolved in the court

Consultants 1.8%, CIOB/Builders 1.4% and those

system or by way of arbitration. The TCC report

falling into the category of Other 3.8%.

for the period 2019 to 2020 indicates that only 133 adjudication enforcement hearings took place in

Procedure wise around 80% of adjudications are

that period.

held on a documents only basis, with some hearings and site visits being held as deemed

Criticisms of the current nature have been made

necessary by the adjudicator.

in respect to the costs that adjudicators can charge which is surely a market for market forces

The adjudicator reaches their decision within 28

to determine but also the power and process exemptions

which

arguably

would

days, or such other period as may be granted by

require

the referring party unilaterally (42 days) or other

government intervention. Lord Justice Coulson

period if both parties agree to it. Studies indicate

has criticised them as have other commentators

that 53% of decisions were issued within the 28-

including the author of this paper.

day statutory period; and 33% were issued within 42 days, being the period of extension within the

Statutory Adjudication in England and Wales has

referring party’s ‘gift’. The remaining 14% of

evolved over the last twenty-three years and is

decisions that were issued in excess of 42 days

now described in the following paragraphs.

from the referral were issued over a range of periods, from 7 to 20 weeks in total (i.e., an

Any crystallised disputes concerning construction

extension of 3 to 16 weeks). On average, those

operations that are not subject to any exemptions

decisions that were issued beyond the 42-day

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ISSUE 3

period were issued within 10.5 weeks of the

A foreign jurisdiction clause does not prevent

referral.

adjudication enforcement and the court is willing to sever parts of a decision that can be properly

The adjudicator must comply with the rules of

identified and dealt with separately due to the two

natural justice and failure to do so may render any

above grounds.

decision

unenforceable,

this

requires

the

adjudicator to consider any defence raised though

The principles that apply to a stay of enforcement

the weight given to defences is matter for the

of a judgement given on an adjudicator’s decision,

adjudicator where information is served outside

can be summarised as follows:

of the adjudicator’s directions or late in the

(a) Adjudication is designed to be a quick and

adjudication timetable. The adjudicator may on

inexpensive method of arriving at a temporary

his own initiative or on the application of a party

result in a construction dispute.

correct his decision so as to remove a clerical or or

(b) In consequence, adjudicators’ decisions are

omission (paragraph 22A(1)), any correction of a

intended to be enforced summarily and the

decision must be made within five days of the

claimant (being the successful party in the

delivery of the decision to the parties (paragraph

adjudication) should not generally be kept out of

22A(2)). As soon as possible after correcting a

its money.

decision, the adjudicator must deliver a copy of

the corrected decision to each of the parties to the

summary

contract (paragraph 22A(3)). Any correction of a

adjudicator’s decision, the court must exercise its

decision forms part of the decision (paragraph

discretion with considerations (a) and (b) firmly in

22A(4)).

mind.

typographical

The

error

arising

adjudicator

accident

entitled

his

reasonable fees and expenses which studies

judgement

arising

out

(d) The probable inability of the claimant to repay

indicate typically range from £175.00 to £400.00

the judgement sum (awarded by the adjudicator

per hour.

and enforced by way of summary judgement) at the end of the substantive trial, or arbitration

Provided the adjudicator has kept within their

hearing, may constitute special circumstances

jurisdiction by answering the question posed

rendering it appropriate to grant a stay.

correctly or incorrectly the TCC will enforce their decision by way of summary judgement with only

(e) If the claimant is in insolvent liquidation, or

limited grounds for resisting enforcement that

there is no dispute on the evidence that the

include:

claimant is insolvent, then a stay of execution will usually be granted.

a material breach of the rules of natural justice

(f) Even if the evidence of the claimant’s present

lack of jurisdiction

financial position suggested that it is probable

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that it would be unable to repay the judgement

jurisdiction or suspended the arbitration in order

sum when it fell due, that would not usually justify

to allow the condition precedent (i.e., referral to

the grant of a stay if:

dispute board) to be fulfilled.

(i) The claimant’s financial position is the same

The identity of the board is likely to be critical to

or similar to its financial position at the time

its success. Unless the project is small or low

that the relevant contract was made; or

value, three heads are usually better than one. For

(ii) the claimant’s financial position is due,

a standing board, the parties should seek to agree

either wholly, or in significant part, to the

the DAAB members upfront. The parties should

defendant’s failure to pay those sums which

look for truly independent members who are

were awarded by the adjudicator.

knowledgeable in the area and with relevant skills, as well as the ability to commit to the project. A

(g) If the evidence demonstrates that there is a

combination of skill sets can work well, and this

real risk that any judgement would go unsatisfied

may also help the board to be perceived as user-

by reason of the claimant organising its financial

friendly and approachable. If the parties find it

affairs with the purpose of dissipating or

impossible to agree on a list of names for

disposing of the adjudication sum so that it would

acceptable board members, they may be able to

not be available to be repaid, then this would also

agree on certain criteria (for example, members

justify the grant of a stay.

with

common

civil

law

background

depending on the governing law of the contract, Adjudication is also used internationally on

members with particular technical or other

construction projects; the FIDIC forms of contract

expertise or qualifications; or avoiding members

introduced Dispute Adjudication Boards (DAB)

who are the same nationality as the parties). In

and

Dispute

any event, care should be taken with provisions

Avoidance/Adjudication Boards (DAAB). As the

that allow a professional body to make the

very purpose of dispute boards is to avoid the time

appointments. Parties should seek to ensure that

and expense of international arbitration, resorting

the appointing entity or official nominated in the

to dispute board proceedings will normally be a

Contract Data is international with a “pool” of

condition precedent to arbitration. As a general

independent and experienced members, rather

rule, if the contract provides for a dispute board

than a body local to the country of the employer

phase,

or the project, which may not always be able to

such

recently

procedural

step

cannot

offer candidates who fulfil the required criteria.

circumvented, unless both parties agree to do so.

An experienced and confident board may also be

In practice, where arbitral tribunals have found

likely to take a proactive and more involved

that referral to dispute board proceedings had unilaterally

not

been

respected,

they

approach. If the board is able to build rapport and

have

a proper relationship with the parties, as well as

typically dismissed the case for lack of

becoming immersed in the project, it may be able to seek to assist the parties to identify, discuss,

2022

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and resolve issues before they become disputes. If

Intercontinental. Sean’s primary expertise is quantum

disputes proceed, the parties may be much more

and as well as acting an international expert witness

likely to accept a decision from an independent,

also sits as arbitrator, adjudicator, expert determiner

respected, and knowledgeable DAAB, particularly

and dispute board member. He has held directorships

where that DAAB is clearly involved in the project

and senior commercial positions with contracting and

and has a good working relationship with the

consultancy firms in the United Kingdom and Internationally. With over 30 years’ experience in the

parties. Even where a party does not agree with

onshore and offshore construction and engineering

the DAAB’s decision, it may prefer to mediate,

industriesSean has worked across the continents of

meaning that arbitration becomes a last resort, to

Europe, Asia, Middle East, Africa and the Americas. He

be used only where the unhappy party genuinely

is Junior Vice Chair of The Adjudication Society,

feels that an arbitration would produce a different

Council Member of the Society of Construction Law

result.

(UK),

ICP

Association,

Member Region

of 2

The

Director

International of

The

Bar

Dispute

Resolution Board Foundation, and founder of UK

Sean Gibbs is CEO of global expert company Hanscomb

Adjudicators and HK Adjudicators.

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MEDIATION V ARBITRATION: THE BEST RESOLUTION TOOL IN INVESTMENT DISPUTES BY: TAHSIN NOOR SALIM, BANGLADESH With increased global trade and burgeoning

suggest

that

there

growing

interest

investment since the 1980’s, there has been a

developing other ADR mechanisms for investment

global support to make arbitration a sustainable

related issues, including mediation, conciliation,

form of dispute resolution in lieu of litigation in

arb–med, arb-med-arb among others.

national courts.

Despite the fact that ICSID has been promoting In fact International Arbitration is becoming one

mediation for several years through its Rules of

of the most popular methods of ADR and the

Procedure for Conciliation Proceedings (the 'Conciliation

growing number of arbitral institutions are a

instance,

the

International

Centre

for

an imperative role in the investment community.

with

the

Mediation,

Conciliation,

processes and

involving

other

ADR

resolve a dispute before taking the matter for

cases involved disputes pertaining to bilateral

arbitration. However, such clauses do not provide

investment treaties.(1) Convention

unfamiliar

Often BITs include provisions urging parties to

In the year 2021 alone, 63% of ICSID’s registered

ICSID

officials,

mechanisms.

Settlement of Investment Disputes (ICSID) plays

The

government

corporate executives, and lawyers are often

testament to it. For

Rules'),

the requisite direction or guidance as to how the provides

the

parties could solve the disputes in the cooling off

basic

period. As a result, it can adversely affect the

procedural framework for arbitration arising

parties, who simply wait for the cooling-off period

between ICSID Member States and investors that

qualify as nationals of other Member States. It is a

expire

before

resorting

arbitration.

Therefore, it is pertinent that such clauses in the

treaty among Member States establishing an

BITs are drafted unambiguously with proper

independent, impartial and self-contained system

directions.

which is delocalised from domestic procedures, i.e. local courts cannot intervene in the ICSID

Additionally, while arbitration rules allow for

process. Awards in ICSID Convention arbitrations

settlement or consent awards, they do not help

are final and binding, and may not be set aside by

the parties in re-evaluating and considering other

the courts of any Member State.

dispute resolution processes. In this regard, parties need to be encouraged and guided about

Even though arbitration has dominated in the

the

field of investment disputes, recent developments

mediation.(2)

other

alternatives

negotiation

and

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ISSUE 3

Often, there is a fear among parties that

reputation for attracting investment, the inclusion

alternative measures in the cooling off period

of mediation as a form of ADR either before,

might portray them as the weaker side. This

during or after arbitration proceedings should be

mindset needs to be changed through promotion

encouraged and used in IIAs and contracts.

and awareness.

A few other reasons as to why the use of On 12 November 2021, the ICSID Secretariat issued

mediation should be promoted in the realm of

its sixth Working Paper on suggested changes to

investment disputes include: Mediation is likely to be less formal, focusing

the Centre's procedural standards for resolving

on fostering parties’ dialogue.

international investment disputes which is the

Mediation can allow parties to control the

result of a five-year consultative process on amending

the

ICSID

rules

for

outcome of the process unlike an arbitration.

arbitration,

Sensitive matters which could taint the

conciliation, and fact-finding. Arbitration has

reputation of a State and as a result decrease

proven to be the most popular mode for settling

its foreign investment, should be dealt with by

international investment disputes between host

mediation as mediation is confidential and

countries and foreign investors. Due to demands

without

from States and investors, ICSID has also devised

Trade

also

been

Agreement

(Article

8.20)

which

recommends that even if there is a narrow

States relating to the power of the mediator to recommendations

has

2.4) and the Comprehensive Economic and

A notable clarification was sought by the Member settlement

This

suggested in the IBA Mediation Rules (Article

a whole new set of procedural rules for mediation.

make

prejudice.

possibility that mediation would result in a

the

settlement, it can still be pursued to raise or

mediator’s own initiative. It was confirmed in the

narrow down the issues that need to be raised

discussions and in the Fourth and Fifth Working

in the arbitration proceedings.

Papers as well that the mediator can do so as the

Mediation may result in speedier resolution.

parties can jointly agree on the functions of the

The Singapore Convention, which makes

mediator.(3)

mediation settlements internationally binding, may help to shift public perceptions of

Arbitration

may

often

preferred

over

mediation.

Only

time

will

tell

whether

arbitration because mediators play a passive role

mediation becomes more popular as a result

while parties retain complete control which can

however result in a deadlock. Yet, with the

Convention, which has 55 signatories, the New

mediator’s input it may be more likely for the

York Convention has 169 signatories with a

parties to reach a settlement

much wider coverage. As a result, the parties

this.

opposed

the

Singapore

may find the New York Convention more Given the benefits of mediation for preserving

desirable in terms of enforcing an award. The

relationships with investors and the State's

Singapore Convention, however, may prove to be successful over time.(4)

THE AOI JOURNAL

2022

the

other

hand,

inconsistent

treaty

ISSUE 3

(1) https://icsid.worldbank.org/news-and-events/news-releases/icsidreleases-new-caseload-statistics-2021-fiscal-year> accessed 1 Januray

interpretation by arbitral tribunals, exorbitant

2022

costs, biased arbitrators and the notion of arbitral

(2) *The author is an Advocate, Dhaka District Court, Bangladesh,

tribunals being kangaroo courts are deficiencies

Barrister (Lincoln’s Inn). She is also an Accredited Mediator, ADRg,

of arbitrations, among others.

UK. Currently, she works as a Lecturer and Academic Guidance Counsellor at London College Legal Studies (South), Bangladesh (a partner institute of ADR-ODR Int’l).

However, where parties require interim relief,

UNCTAD, Investor–State Dispute Settlement: REVIEW OF

arbitration would be the preferred choice alone.

DEVELOPMENTS IN 2016, Issue 1, May 2017 (3) Ibid. (4) Ashutosh Ray, Is Singapore Convention to Mediation what New

It is, therefore, suggested that mediation should

York Convention is to Arbitration?

not replace arbitration in resolving investment

<http://arbitrationblog.kluwerarbitration.com/2019/08/31/is-

disputes but it can act as a cooling off mechanism

singapore-convention-to-mediation-what-new-york-convention-isto-arbitration/ > accessed 25 March 2022

before, during or after arbitration proceedings.

THE AOI JOURNAL

2022

ISSUE 3

THE IMPORTANCE OF COMMUNICATION IN ADR BY: ZAFIRA HUDANI, ATLANTA It may be suggested that the primary purpose of

communication that would have otherwise not

the process of Alternative Dispute Resolution is to

have been possible. Communication encompasses

communicate ideas. ADR would be non-existent if

a large range of verbal and non-verbal cues.

we as humans would refuse to communicate with

Verbal cues focus on spoken words. In contrast,

one another.

non-verbal cues include things that are conveyed by looking at a person's facial expression or body

Arguably, today the difficulty is that generally

language. Body language can include but is not

humans are not open to hearing opinions that are

limited to a smile, a handshake, how or where a

different from their own. Human beings are

person chooses to sit during a discussion.

naturally sensitive to how others view what they say or do, and this is a reason that communication

The ADR process highlights party autonomy,

does not occur as openly as it could.

which creates the benefit that all parties have the opportunity to verbally communicate their topic(s)

However, the process of ADR can assist in

of concern. In order to create a space for open

increasing the possibility of allowing a method of

dialogue, the parties agree to have a third neutral party to aid in the discussion. The creation of a

2022

THE AOI JOURNAL

creation

ISSUE 3

neutral forum allows the parties to discuss issues

The

verbal

and

non-verbal

of concern without the daunting prospect of

communication skills that can assist in the ADR

litigation that can be both time consuming and

process develop as we interact with other people.

expensive. In this way, a mediator, facilitator,

In a time of increased use of technology, it may be

arbitrator, or negotiator can assist in the

seen as a blessing to have platforms that can

conversation between the parties that may

connect people from all areas of the globe in one

provide a solution that all participants can agree

meeting. However, it may be suggested that the

upon. It is crucial to note that the ADR process

new platforms test an individual's verbal and nonverbal communication skills. As such, these skills

would be of less value to the parties involved if

may be viewed as an essential element of

they had not agreed to communicate as part of

alternative dispute resolution.

this process.

2022

THE AOI JOURNAL

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ISSUE 3