The Resolver November 2014

THERESOLVER

T H E Q UA RT E R LY M AG A Z I N E O F T H E C H A RT E R E D I N S T I T U T E O F A R B I T RAT O R S

November 2014

New LCIA rules come into force Russian Arbitration Association to launch online arbitration rules Restorative practice’s role in managing conflict in the criminal justice system How to find your speaking voice Guide to training and courses

www.ciarb.org

Ethan Katsh

the ‘father’ of online dispute resolution on a new future

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Michael Stephens

WELCOME TO OUR FINAL EDITION OF 2014.

Reflecting on our successful Mediation Symposium held recently, this issue includes a fascinating article by Ethan Katsh, the doyen of online dispute resolution (see page 10), as well as a timely contribution about restorative justice (page 6).

We also look forward to the prestigious DAS Convention in London on 14 November. This will be an especially significant event as we launch the CIArb Dispute Board Rules.

Since the last issue, I have continued to meet, speak and travel on your behalf, seeking to publicise the Institute, its training opportunities and its conferences and resources. I have seen at first hand the enthusiasm for our work, shown not only by your fellow members but also those who want to become members. I have attended the fully subscribed conferences in Mombasa (organised by the Kenya Branch) and Larnaca (organised by the Cyprus Branch); supported well-attended training courses in Georgia and Cyprus; and visited branches in the UK and elsewhere. I have represented the Institute at a number of significant international conferences. Wherever I have been, the welcome has been warm and interest in CIArb has been considerable.

As I face the end of a memorable year, I thank all who have guided me throughout, particularly our Director General Anthony Abrahams MCIArb and all the members of the Executive; I pay the warmest tribute and thanks to all those who give up their time to serve the Institute, whether on one of its boards or at committee or branch level.

Your efforts are always appreciated.

I also wish to acknowledge publicly the immense support (and tolerance) of my wife Catherine and my family. Any success that I have achieved this year is owed to them.

Any shortcomings must remain mine.

Lastly, I wish Charles Brown C.Arb every good fortune in his term as President of the Institute. I know that he will lead us through a memorable anniversary year.

The welcome has been warm and interest in CIArb has been considerable

Michael Stephens FCIArb President of CIArb

CONTENTS WATCH 4-5 News: Dubai opens maritime arbitration centre; Olympic honour presented to Singapore’s Michael Hwang SC C.Arb; LCIA to offer faster, streamlined process

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LEGAL SERVICES T: +44 (0)20 7421 7438 Stephanie Boyce E: sboyce@ciarb.org DISCLAIMER: The contents of this publication are not intended to be a substitute for either general or specific legal advice on individual matters, and readers are strongly encouraged to seek competent legal advice.

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Law round-up: A Ltd v B Ltd [2014]; Kruppa v Benedetti & Anor [2014]

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MARKETING & SPONSORSHIP, T: +44 (0)20 7421 7441 Waj Khan E: wkhan@ciarb.org POLICY T: +44 (0)20 7421 7485 Chris Wilford E: cwilford@ciarb.org

LEADER

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Analysis: Restorative practice is used to repair harm, rebuild relationships and encourage communication inside the UK criminal justice system and beyond. But what is it? Wendy Freshman reports Cover: Technology is the ‘fourth party’ in dispute resolution and is likely to bring radical changes to the ADR field as we know it, writes Ethan Katsh How To… find your speaking voice CIArb Branch news: Inverness hosts ICEA consultation; Nigeria Branch appoints a new General Manager; London Branch holds 11th Annual Mediaton Seminar CIArb events: A photographic record of the 7th Mediation Symposium.

What’s On: Round-up of upcoming training courses November 2014 | THERESOLVER

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WATCH

767

The number of new cases registered in 2013 at the ICC. The cases involved 2,120 parties from 138 jurisdictions worldwide.

Source: ICC

Dubai opens maritime arbitration centre A new maritime arbitration centre has been set up in Dubai aiming to position the city as a world-class maritime hub.

The Emirates Maritime Arbitration Centre (EMAC) was launched in September, the first of its kind for the Middle East region. It will aim to address and resolve maritime disputes quickly and set maritime regulatory guidelines and standards.

The initiative forms part of a commitment by the Dubai Maritime City Authority (DMCA) to “develop and establish an integrated legal environment for the maritime sector.”

It is hoped the presence of a maritime-based arbitration panel will also play a major role in boosting international maritime trade development in Dubai and attract more ship owners to the emirate.

Amer Ali, Executive Director, DMCA, said: “This initiative is expected to strengthen investor and stakeholder trust in Dubai’s maritime system. At the same time, it will also help to raise the competitiveness of the

GETTY

EMAC to focus on Middle East disputes then expand to other parts of the region

Maritime arbitration is an important part of developing Dubai’s maritime community

local maritime industry.”

Common disputes are likely to include affeightment, cargo shipping, shipbuilding and repair contracts, used ships

sale contracts, assurance and reinsurance contracts, marine collisions and other disputes relating to marine loss adjusting, maritime assistance and rescue,

Online arbitration rules for RAA The Russian Arbitration Association (RAA) is to introduce online arbitration rules, writes Sergejs Dilevka.

The new scheme will be available primarily to assist in settling small and medium claims where the amounts in dispute do not justify the expenses involved in complex arbitration. Although there is no official limit for the claim/amount in dispute.

Arbitration under the rules will commence and proceed via an online arbitration platform (RAA System) and email notifications.

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Costs will be saved by greater use of IT, for example, electronic communication and submissions and online conference facilities.

The offering is scheduled for launch on 1 January 2015.

The RAA, based in Moscow, was established in 2013 by a worldwide community of law firms, practitioners and academics with the aim of promoting arbitration in Russia and more broadly within the Commonwealth of Independent States (CIS).

The RAA’s regulations came

into force in July. The RAA Board includes members of the highest repute in the field of international commercial arbitration.

Roman Zykov, the RAA’s Secretary General said: “Arbitration is gaining momentum in the CIS region and the number of disputes is rising.

Therefore, it is a perfect time for establishing a modern regional arbitration institute.” → www.arbitratons.ru Sergejs Dilevka ACIArb specialises in international law and dispute resolution at MENA Chambers

he added. Initially the centre will focus on disputes arising in the Middle East but then expand to cover other parts of the region.

Bhutan and Guyana sign the Convention Bhutan and Guyana have become the latest state parties to sign up to the New York Convention.

This means the total number of signatories is now 152.

Guyana has acceded to the Convention without making any reservations, while Bhutan has chosen two: the “commerciality reservation” and the “reciprocity reservation.”

The Convention will come into force for both countries on 24 December 2014.

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7th Annual Mediation Symposium → Aled Davies (pictured) chaired the event, which covered issues such

as the increased use of online dispute resolution, see pages 16-17

Singaporean international arbitrator Michael Hwang SC C.Arb has been awarded the Pierre de Coubertin medal for his exceptional services to the Olympic movement.

The medal is a special decoration awarded by the International Olympic Committee (IOC) to recipients who exemplify the spirit of sportsmanship in Olympic events or through exceptional service to the Olympic movement.

Hwang has been involved with the International Council of Arbitration for Sport (ICAS) since 2006 and has actively contributed to the development of the Court of Arbitration for Sport (CAS) for eight years.

He also chaired the CAS ad hoc

SINGAPORE NATIONAL OLYMPIC COUNCIL

Olympic honour presented to Singapore’s Michael Hwang

Ng Ser Miang presents the Pierre de Coubertin medal to Michael Hwang

division of the Commonwealth Games in New Delhi in 2010.

Hwang is the first Singaporean to receive the medal, presented to him by IOC member Ng Ser Miang.

Hwang said: “It is a great

honour to receive a medal associated with the Olympic Games bearing the name of the founder of the Olympic movement. In that respect, I feel honoured and also humbled.”

LCIA acts to offer a faster, more streamlined process The London Court of International Arbitration (LCIA) has amended its arbitration rules in a bid to promote a faster and more streamlined process. The changes, an update on the LCIA’s 1998 rules, came into effect on 1 October.

According to Bennett Jones LLP, the amendments include new provisions “designed to pressure and incentivise arbitrators, parties,

and legal counsel to conclude arbitrations as efficiently and as swiftly as possible.”

For example, arbitrators are now required, prior to their appointment, to confirm that they are able to devote “sufficient time, diligence and industry to ensure the expeditious and efficient conduct of the arbitration.”

The LCIA may revoke an

arbitrator’s appointment in the event they do not “conduct the arbitration with reasonable efficiency, diligence and industry”.

In other changes, there has been the introduction of a new emergency arbitrator process, a new code of conduct for legal counsel in LCIA proceedings and modernisations in relation to complex and multi-party disputes.

Successful 2013 for Egypt’s CRCICA A total of 72 new arbitration cases were filed before the Cairo Regional Centre for International Commercial Arbitration (CRCICA) in 2013.

The total values of disputes filed reached USD 1.5 billion, a 1.15 per cent increase when compared with 2012.

The largest amount in dispute was USD 1 billion, a three-year

high for the centre.

CRCICA’s annual report highlighted the breakdown in the type of cases with services disputes being the most common, followed by construction; lease agreements and real estate; investment agreements; then media and entertainment disputes.

“The rich variety of disputed

contracts referred to CRCICA illustrates the importance of arbitration as a means of dispute settlement and confirms the credibility of international arbitration under CRCICA’s auspices,” said the annual report.

The number of cases filed to CRCICA, which is celebrating its 35th anniversary this year, for the first half of 2014 was 35.

Premises raise Scottish profile in arbitration The Scottish Arbitration Centre has moved to new premises marking the beginning of a “new chapter for arbitration” according to the Scottish Cabinet Secretary for Justice.

The move to 125 Princes Street in Edinburgh, which boasts stunning views of Edinburgh Castle, took place in October and was launched by Kenny MacAskill MSP. MacAskill said: “This move to new premises can mark the beginning of a new chapter for arbitration. I would like to see further use of alternatives to court wherever appropriate, such as Scottish arbitration and for those involved to bring their disputes to the centre.”

He added that the Scottish government would continue to work with and support the centre.

Brandon Malone MCIArb, Chairman of the centre also said: “Scotland has a significant profile in the international arbitration world and we are looking to capitalise upon that as we move on to the next phase of our development.

“Now, with our new premises, we have a fantastic facility for dispute resolution.”

The arbitration centre is supported by CIArb’s Scotland Branch, RICS Scotland, the Law Society of Scotland and the Faculty of Advocates.

ISTOCK

Medal for ‘exceptional service’

A ‘new chapter’ in Edinburgh November 2014 | THERESOLVER

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ANALYSIS RESTORATIVE PRACTICE Restorative practice is used to repair harm, rebuild relationships and encourage communication inside the UK criminal justice system and beyond.

What is it? Wendy Freshman reports

SHUTTERSTOCK

P I’ve regained control by turning a negative, frightening experience into a positive, lifechanging one 6

Restoring the balance Paula was out walking her dog when she fell victim to a relatively minor but frightening crime committed by a young man.

Paula’s initial shock and anger were soon replaced by intense anxiety. She ‘fell to pieces’ worrying about it and how much worse it could have been.

The young man was arrested a week later, admitting immediately the crime he had committed. Paula found the police very helpful throughout the process, but she never had the opportunity to express her feelings on it; her emotional reaction was never taken into account. At the same time, her anxiety levels increased whenever she left her home.

She was always looking over her shoulder.

Things started to change when she received a letter from Jodie, a restorative justice facilitator from Essex Youth Offending Team, with information about restorative justice and an invitation to discuss it further. Jodie visited Paula and listened to her at length. Paula says: “For the first time I was given a voice and a chance to make decisions.” Paula wanted to ask the young man what his intentions had been and explain the impact of the crime.

She realised that restorative justice would give her the

opportunity to do this.

When the young man turned down a face-to-face meeting, Jodie suggested video recordings where Paula could film her questions and get the answers in the same way from her offender. She gave Paula a lot of preparation before the recording, reassuring her about various aspects. The video turned out to be ideal as it allowed Paula many takes to get her message across in the way that she wanted.

“I told him how upset and traumatised I was by what he’d done. It was so liberating just to have a voice and to know he’d have to listen to what I was saying,” she says.

The offender’s response made Paula realise that he was nothing to be afraid of. She said of the restorative process: “I felt like a weight had been lifted off me and that wouldn’t have happened if I hadn’t been offered restorative justice.

I’ve regained control by turning a negative, frightening

experience into a positive, life-changing one.”

This is an example of carefully facilitated restorative justice (RJ) – as restorative practice is known in the criminal justice system (CJS) – that markedly aided a victim’s recovery. RJ gives victims the chance to meet or communicate with their offenders to explain the real impact of the crime and empowers victims by giving them a voice. It also holds offenders to account for what they have done and helps them to take responsibility and make amends.

It is used at all stages of the CJS in

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England and Wales, and can deal with any kind of offence.

Outside of the CJS restorative practice is effective at building strong relationships and can help prevent and manage conflict in schools, children’s services, workplaces, hospitals, prisons and communities. The processes have roots in ancient times, with indigenous societies in New Zealand, Australia and Canada having dealt with harmful behaviour in restorative ways, but modern restorative practice developed in North America in the 1970s and has since spread

to the UK, the rest of Europe and Australasia.

There are similarities between RJ and mediation, and although there is no victim or offender ‘label’ in community or neighbour mediation, there is often the perception of harm and victimisation from parties, leading to the same or equal need for healing or justice.

I believe that both RJ and mediation are the same in principle, just with different starting points. Some community mediations have already begun a process that is leaning towards

statutory intervention, as RJ does.

Neighbour and community mediations look for resolution between the parties themselves – they are not process-led, but party- or client-led. The mediator is simply there to ensure that any process is effective, constructive and, above all, safe. The mediator will still apply rigorous assessment and risk analysis to the situation presenting itself, such as a noise or parking issue or harassment case, for example but the process is guided by what the participants need rather than any organisational need.

In addition to this, mediators have no vested interest in the outcome of any mediation case.

They remain neutral and nonjudgmental, and when working in the community, seek only to help participants find a way forward that is acceptable by all.

This is often a concept that remains alien to statutory organisations, whose function is to make a judgment, or form an outcome, based on a statutory or legal backdrop. But where positive outcomes for the parties are beneficial for partners such as police, community safety November 2014 | THERESOLVER

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ANALYSIS RESTORATIVE PRACTICE partnerships or local authorities there lies a crossover with RJ. A recent example of this was a licensing issue. Residents living near a nightclub – whose customers had been causing frequent disturbances – were opposing the granting of a licence for the club, with the local authority stuck in the middle, and potentially facing huge legal bills for dealing with the issue that threatened to go to court (around £40,000 for each side).

By using a restorative process to engage with the local residents and club management, various workable agreements in the licence were put forward, which were agreed by the licensing authority, magistrates and police.

This is also an example of how cost effective RJ (and mediation) can be compared to litigation and legal costs, with the added benefit of engaging with the public. This licensing issue did not require a full face-to-face conference, and was managed through another indirect process.

There are various ways restorative practice can be applied outside the CJS. A series of independent evaluation reports have shown that schools employing RJ have cut exclusion rates by as much as 80 per cent, and that there is a greater connection between students and their teachers and students feeling pride in their community owing to a sense of ownership.

Furthermore, the need to restrain young people is significantly reduced in care homes that adopt restorative practices.

The benefits of RJ to victims, offenders and on a wider scale are shown by the testaments of participants such as Paula and by a robust evidence base. A sevenyear, £7 million Ministry of Justice evaluation of RJ revealed that 85 per cent of victims of crime who have gone through a restorative conference say that they are satisfied or very satisfied with the experience, frequently finding that they’ve regained a 8

GETTING INVOLVED Restorative practice is not appropriate in every case and trained practitioners make careful risk assessments to ensure that it is offered only in the right circumstances and in a way that meets participants’ needs and prevents re-victimisation. Nearly all areas of conflict and offending behaviour can benefit from it if the facilitator is correctly trained to the highest standards as outlined by the UK’s Restorative Justice Council (RJC). RJ is particularly beneficial for higher offending tariffs such as sexual crime, domestic abuse and gang and hate crime, although particular care needs to be taken in those cases.

Facilitators working with parties that are especially vulnerable or have mental health issues or learning difficulties undertake additional training to ensure they are sufficiently qualified and experienced. The RJC’s Best Practice Guidance for Restorative Practice sets out additional skills and knowledge that are needed for facilitators when working with sensitive and complex issues.

Community mediation and restorative practice are certainly interesting fields, and any mediator or arbitrator who would like to expand their knowledge or working base could benefit from contacting either the RJC for further information on becoming a registered practitioner, or their local community mediation service to train as a volunteer. Many community mediation services work in partnership with other organisations, so the work can vary from neighbour disputes, to facilitating youth crime restorative clinics, peer mediation training in schools or larger community conflict such as antisocial behaviour or intergeneration disputes in families.

Contact the Restorative Justice Council on 020 7831 5700 or go to → www.restorativejustice.org.uk

sense of control, a voice and their confidence. Many say that they have been able to put a line under the experience and move on.

A study by Dr Caroline Meyer Angel, then lecturer in criminology at the University of Pennsylvania in the US, on the effects of restorative conferencing on victims, shows that meeting with the offender “reduce[s] the psychologically traumatic effects of crime”. Dr Angel’s work found that within six weeks of a restorative conference, victims have “one third fewer posttraumatic stress symptoms” than those who have not had the opportunity to meet the offender, and this increases to “40 per cent fewer symptoms” six months later.

RJ is victim centred but its benefits for offenders are also significant. RJ processes that involve face- to-face conferences lead to a 14 per cent reduction in the frequency of reoffending, according to the government evaluation programme. This is because meeting the people that they’ve harmed leads many offenders to realise the destructive consequences of their

crimes – a deep understanding of which they are unlikely to gain in court – and to resolve to change their behaviour. One offender said: “Going to prison, that’s just running away and getting away from it all. But to actually go into a room and sit down knowing that they’re going to walk through that door in a few minutes time and want to know why you stole from them – that’s scary for me.

Every time it kind of broke me, but it made me as well.” He has not reoffended since.

The consequences of this reduction in re-offending go beyond turning lives around, they

For every £1 spent on restorative justice, £8 is saved to society through a reduction in reoffending

mean 14 per cent fewer crimes and a corresponding number of victims left unharmed.

This also leads to reduced monetary cost to victims and the CJS. For every £1 spent on restorative justice, £8 is saved to society through a reduction in reoffending. The Matrix Report – an independent expert analysis of the economic benefits of RJ – has revealed that it would likely lead to a net benefit of more than £1 billion over 10 years if made available to every victim that needs it.

Within the community, participants feel valued and engaged in a process that holds them at its heart. Participants report feeling empowered, meanwhile staff from local authorities are freed from hours of administration and dealing with angry and inflammatory situations. The results are future focused, increase independent communication and have longterm resolutions.

Wendy Freshman is a mediator in the fields of both restorative practice – mainly working with cases that involve criminal activity – and community and neighbour mediation.

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LAW

An overview of recent key court cases

ROUND-UP CHALLENGING THE AWARD UNDER SECTIONS 67 AND 68: THE TEST OF EXHAUSTION

THE CASE

A Ltd v B Ltd [2014] EWHC 1870 (Comm)

○ ARBITRATION

B CONTENDED TO HAVE ENTERED INTO A SERIES OF contracts with A. A dispute arose and the matter was referred to arbitration under the bylaws and rules of the International Cotton Association (ICA). A participated in the arbitration and disputed the tribunal’s jurisdiction. It also denied making the contracts as well as having agreed to ICA (or any) arbitration.

The tribunal concluded that it had jurisdiction and upheld B’s claim.

A sent the ICA a notice of appeal (under the relevant ICA rules, parties have a right to appeal to a so-called Technical Appeal Committee [TAC]). The ICA required of A payment of fees, a deposit and outstanding costs within a given period of time. Without paying the sums required, A sent the ICA its grounds of appeal. Subsequently, the ICA sent A notice that its appeal had been dismissed as a result of its failure to pay the above-mentioned sums within the deadline. A sent the ICA payment of the sums requested and sought an extension of time for paying. The ICA refused the application for an extension having, apparently, asked B whether they consented to it and after B had declined to do so. Consequently, no TAC was ever appointed to determine A’s appeal. A applied to the High Court for an order that the award be set aside and/or declared to be of no effect on the grounds of lack of jurisdiction and/or serious irregularity. The court was asked to determine whether A’s challenge to the tribunal’s first-tier award

pursuant to sections 67 and/or 68 of the Arbitration Act 1996 was precluded by the terms of sections 70(2) and/or section 73(2) ibidem. Two questions arose as to whether section 70(2) precluded A’s proceedings in the High Court. Namely, was there an available arbitral process of appeal or review? And has A exhausted it?

sections 67 and/or 68 was not precluded by the terms of section 70(2) or section 73(2). ○ WHAT IT MEANS

The test of exhaustion is a factspecific inquiry and, therefore, there will sometimes be room for uncertainty about when it is met.

The full judgment is available at:

→ www.bailii.org/ew/cases/EWHC/ Comm/2014/1870.html

○ THE JUDGMENT

The Court decided that there was an arbitral process of appeal or review available to A. It also held that, when the application for an extension was refused, A had actually exhausted the arbitral appeal process, thereby concluding that A’s challenge to the first-tier award pursuant to

There will sometimes be room for uncertainty about when the test of exhaustion is met

WHAT CONSTITUTES A BINDING ARBITRATION AGREEMENT?

THE CASE

Kruppa v Benedetti & Anor [2014] EWHC 1887 (Comm)

○ ARBITRATION

A DISPUTE AROSE AS TO WHETHER OR NOT A CLAUSE constituted an arbitration agreement as defined by section 6(1) of the Arbitration Act 1996. The relevant clause read as follows: “Governing Law and Jurisdiction — Laws of England and Wales.

In the event of any dispute between the parties pursuant to this Agreement, the parties will endeavour to first resolve the matter through Swiss arbitration. Should a resolution not be forthcoming the courts of England shall have non-exclusive jurisdiction.”

B argued, inter alia, that the word “arbitration”, on its own, was sufficient for an English court to find a binding arbitration agreement, as shown by numerous charter party cases. K alleged, among other things, that dispute resolution clauses could be arbitration agreements when the word “arbitration” was not used and could not necessarily be arbitration agreements even when the word was used. It also pointed out that the parties had not specifically agreed to refer any dispute to arbitration but had just agreed to “endeavour” to resolve the matter through Swiss arbitration. B sought to stay proceedings on the basis that the parties had purportedly agreed that any disputes arising out of the agreement in which the aforementioned clause was contained would be submitted to arbitration. The court was asked to determine whether or not the said clause did constitute an arbitration agreement. ○ THE JUDGMENT

The court held that there was not a binding agreement to arbitrate but merely an agreement to attempt to resolve the matter by a

process of arbitration which had not been set out in the clause or elsewhere in the contract. Article 179 of the Private International Law Statute in Switzerland provides that arbitrators are to be appointed by agreement between the parties, but in the absence of such an agreement, the court where the arbitral tribunal has its seat can make the appointment itself.

Since the reference to “Swiss arbitration” did not specify the seat of the arbitration nor the court that could make any appointment in lieu of the parties’ agreement, Mr Justice Cooke decided that the clause did not require the parties to refer any dispute to arbitration in the sense required by the Arbitration Act. The application was dismissed.

○ WHAT IT MEANS

This case provides guidance as to the binding nature of agreements to submit to arbitration in accordance with section 6(1) of the Arbitration Act 1996.

The full judgment is available at:

→ www.bailii.org/ew/cases/EWHC/ Comm/2014/1887.html

Both reports by Julio César Betancourt MCIArb, Head of Research and Academic Affairs at CIArb

This case provides guidance as to the binding nature of agreements to submit to arbitration

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TECHNOLOGY ONLINE DISPUTE RESOLUTION Technology is the ‘fourth party’ in dispute resolution and is likely to bring radical changes to the ADR field as we know it

Welcome to the party Article: Ethan Katsh Photography: Richard Gleed

EVERAL DECADES ago, on the very first page of their influential book, Getting to Yes, Roger Fisher and William Ury wrote that “conflict is a growth industry”.

At the time, there was a widespread belief that courts were unresponsive to those involved in a dispute and that alternative dispute resolution (ADR) was the solution.

Today, conflict is even more of a growth industry. Consumers have problems with online transactions, citizens worry about preserving their identity, businesses face threats to their online reputations, social networks foster antisocial behaviour, the “sharing economy” is often not very sharing, governments struggle with security and everyone experiences imperfectly functioning websites. The merger of the 10

physical world with the virtual world has brought with it a broad range of novel, complex and, at times, lucrative opportunities. It has also brought with it a need for new online dispute resolution (ODR) and prevention processes.

If ADR was an effort to resolve disputes out of court, ODR is an effort to resolve and prevent disputes without the constraints of physical space. ODR’s origins are traceable to a prediction and an observation made in the early 1990s. The prediction was that the internet, as it continued to evolve and as its use increased, would not be a harmonious place.

This might seem obvious to anyone today.

However, it was not so obvious in the early- to mid-1990s before there was

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TECHNOLOGY ONLINE DISPUTE RESOLUTION spam, phishing, music downloading, buying and selling online, multi-player games and anti-virus software that is required simply to keep a computer operating. Indeed, the hope often expressed at that time was that this new online environment for commerce, education and entertainment would find ways to avoid the kinds of conflict that many of these activities had generated in the past in the physical world. As Mitchell Kapor, a pioneer of the personal computing industry and founder of Lotus Development Corporation, noted in 1993: “Life in cyberspace seems to be shaping up exactly like Thomas Jefferson would have wanted: founded on the primacy of individual liberty and a commitment to pluralism, diversity, and community.”

This was an unrealistic but, at the time, not an absurd hope. The internet traces back to 1969 and for the first 20 or so years of its existence, about half its life, there were few disputes. Its users during this period were in academia and the military and, when there were disputes in the relatively small user population, they were settled informally.

During this period, few citizens were even aware of the internet and if they had been aware, they would have had no way to connect to it since the first internet service provider did not appear until 1992.

Companies like AOL had many subscribers, but they could at that time only communicate with other subscribers to AOL. Until 1992, commercial activity was actually banned on the internet. There were no consumer or commercial disputes – not because there had been a systematic and intentional effort to design an environment that would not generate disputes – but because there was an online population with very few ways to generate a dispute, certainly far fewer ways than are possible today.

This all changed in the early 1990s as the online population became larger, as domain names and websites became numerous and valuable, and as it became possible not only to buy and sell online but to engage in a broad range of online activities. Ever since, the internet has supported both a growth industry in goods and services and a growth industry in disputing.

The observation alluded to earlier concerned not disputes but dispute resolution and, more specifically, the link between technology and dispute resolution.

It was that all forms of dispute resolution involve the communication and processing of information. Such processes might be 12

employed most easily and effectively face-toface but computers are machines that are capable of both processing and communicating information. Software, by definition, manages the flow of information. Thus, with appropriate software, interactions between disputants might be managed online in a manner that would lead to a desired outcome.

In 1999, eBay asked the Center for Technology and Dispute Resolution at the University of Massachusetts to conduct a pilot project to see if disputes between buyers and sellers could be mediated online. The pilot project handled 200 disputes in a two-week period, by far the largest number of disputes handled online up to that point and it prompted eBay to include dispute resolution as an option for buyers and sellers in the event a transaction was unsuccessful. By 2013, the number of disputes handled by eBay in that year reached the extraordinary figure of 60 million.

The 1999 eBay pilot project employed a human mediator communicating with parties via email. The process was referred to at the time as “online ADR” since the model employed was the same one this mediator employed when he resolved disputes face-to-face. ODR was looked at as a networkbased equivalent of offline face-to-face dispute resolution processes, such as negotiation, mediation and arbitration. It attempted to mimic traditional processes, but at a distance. Human mediators in these early efforts employed the network in lieu of meeting face-to-face but used the skills that they had developed and employed offline.

While information technologies typically innovate by providing new capabilities for both communicating information and processing information, the initial ODR experiments emphasised the former more than the latter. In general, therefore, while the tools were novel, the model was not.

Communication is an element in every dispute resolution process and new capabilities for communicating and managing the flow of information were viewed by the traditional ADR community as, at best, a necessary alternative where face-to-face meetings were not possible. In that guise, it was not a change agent in any kind of fundamental way.

The online ADR model in which the mediator alone managed the flow of information between the parties has gradually been supplanted by a model in which technology is looked at as a ‘fourth party.’ The fourth party may, in less complex

The online ADR model in which the mediator managed the information flow between parties has been supplanted disputes, such as the eBay disputes, replace the human third party by helping the parties identify common interests and mutually acceptable outcomes.

More commonly, the fourth party assists, enhances or complements the mediator or arbitrator. For example, consider the specific informational tasks performed by third-party neutrals. These might include brainstorming, evaluating, explaining, discussing, identifying, defining, organising, clarifying, listing, assigning meaning, calculating, linking, proposing, arranging, creating, publishing, circulating, monitoring and so forth. Some of these are simple or clerical but some involve choosing among options and making decisions at appropriate times and in appropriate ways. Technology can assist with all of these.

A helpful way to understand the value and purpose of the various tools and resources is to think of a triangle whose three sides are labelled convenience, expertise and trust.

Any successful dispute resolution system requires that these three sides exist and each of the tasks mentioned above and tools for fulfilling those tasks can be placed on one of the sides. The history and attraction of ODR thus far has largely been on the convenience side of the triangle but that is shifting as efforts are made to increase security (trust) and software becomes available for contributing to skills (expertise).

The three sides of the triangle are also a reminder that both the ODR field and ODR practitioners will evolve along with the technology. We already have relatively good, inexpensive and easy to use video capabilities (convenience) but there is also room for significant improvement. We have widely

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GETTING INVOLVED: HOW TO FIND OUT MORE ABOUT ODR • Participate in the annual all-online ODR conference called ODR Cyberweek. → www.adrhub.com • The main portal for information about ODR is → www.odr.info • Attend the annual International ODR Forum. The next one is to be held in New York in June 2015. → www.odr2015.com. The programme for this year’s meeting in Silicon Valley can be found at → www.odr2014.com • The most recent sourcebook for ODR is available free online. See Online Dispute Resolution Theory and Practice: A Treatise on Technology and Dispute Resolution by Mohamed S Abdel Wahab, Ethan Katsh and Daniel Rainey (Editors) at → www.ombuds.org/odrbook/Table_of_Contents.htm • Remember the ODR triangle. All systems should have some measure of convenience, expertise and trust. Be wary of systems that have only two of the three.

available email and texting applications but they are typically poor choices for organising data and managing the flow of information and, as a result, are not good choices of negotiating online. Some web-based systems not only manage communication efficiently but are more secure as well, thus building trust. It is in the fourth party tools that process information that the differences between ODR and ADR will become increasingly apparent.

We can expect use of ODR to expand even further in light of three developments: • changing views towards the online medium and digital communication; • development of more powerful software; and • ongoing dissatisfaction with the functioning of courts and ADR. The first development has to do with the increasingly routine reliance on digital communication in people’s lives in modern-

day society. The boundary between disputes arising online and those arising offline is vanishing as technology use commonly becomes a part of all relationships and transactions. As the line separating the online ‘space’ from the physical surroundings is being blurred, our understanding of what can be performed online is also changing, making ODR more appealing for offline, potentially more complex and intimate disputes. ODR began as a process for resolving disputes that arose online but ODR tools and systems are now being employed in any dispute.

The second development concerns evolving, indeed accelerating, innovation in the use of data. The rapidly growing field of ‘big data’ focuses on finding meaning in data that in the past was never collected or examined. In the ADR field, data was routinely discarded when a dispute was resolved and in the dispute prevention arena

data was often not available. The field of dispute systems design is aimed at using data to prevent disputes and new opportunities in this area are likely to become available.

As this occurs, the trajectory of ODR development may be in a direction not really anticipated today, one that takes more seriously the role that information can play not only in how disputes are resolved but in how they can be prevented. The fourth party, in other words, is likely to encroach on the role of ADR just as ADR and the third party neutral encroached on more formal dispute resolution processes.

The third development has to do with the potential of technology to remedy some of the persistent problems we have been experiencing with our justice system.

In recent decades it became evident that technology could dramatically enhance the efficiency of both court proceedings and alternatives through automation and 24/7 access to files from afar. It is worth remembering that eBay is essentially running the world’s largest small claims court.

The opportunity and capability for public virtual courts providing convenience, expertise and trust is not far off.

In his recent book, Tomorrow’s Lawyers Professor Richard Susskind wrote: “ODR will prove to be a disruptive technology that fundamentally challenges the work of traditional litigators (and of judges).

In the long run, I expect it to become the dominant way to resolve all but the most complex and high-value disputes. For law firms and court lawyers, this is a direct assault on their conventional work. But it is also a great opportunity— to become a leading player in this new, currently uncontested market space.”

In the short time since the publication of Susskind’s book, and partly due to it, the ODR marketplace has been experiencing increasing interest and growth. The question “what can technology provide to the dispute resolution field?” may not yet be totally clear but it may also be true that Professor Susskind is underestimating the degree of change that will occur as technology becomes a routine part of all dispute resolution, in or out of court.

Ethan Katsh is Professor Emeritus of legal studies, University of Massachusetts Amherst; Director at the National Center for Technology and Dispute Resolution; and 2014-2015 Research Affiliate at Berkman Center for Internet and Society, Harvard University.

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HOW TO…

…find your speaking voice

By Lawrence Wiseman Illustration: Cameron Law “If you share something that is important to you, your audience will care too”

T

MORE INFO Looking to appoint an arbitrator?

CIArb-Das can help you find a suitably qualified arbitrator with the right knowledge and experience. For any enquiries please contact Waj Khan. T: +44 (0) 207 421 7444.

Email wkhan@ciarb.org

Lawrence Wiseman FCIArb is in the Infrastructure Compliance team at Deutsche Bank.

14

THIS ARTICLE IS NOT ABOUT how to speak, but rather how to find your personal voice. Your voice is the motivation behind your speaking – the drive that gives you authenticity, conviction and motivation to stand up in the first place. Audiences, whoever they are, value this authenticity and connection with your personal voice above all else. Once you develop a truly authentic voice, your audiences will connect with you in a new and powerful way.

1 ⁄

Why do I care?

This is the single most important piece of advice that I was ever given: if you share something that is important to you, your audience will care too.

As humans, we are built to empathise with others, but also to distrust didactic instruction.

Therefore, if someone says: “You should listen,” we tend to ignore them. If someone says: “I am worried about X,” then the chances are we will worry if it will affect us too. As speakers we worry about making our audiences care about the material, but the truth is that audiences vary wildly. Rather than worrying about why they care, ask yourself first, why do

I care about this? What makes this material important to me.

If an audience sees why the topic matters to you, then it is more likely to take an interest.

2 ⁄

Where is this going?

Audiences can read about the past in a book. They are listening to you because, in theory, they want to hear what you think this means.

This means it’s fine to give your opinion and to make suggestions.

We all have personal insights into our particular subject areas and by sharing them you are sharing a part of yourself. You are helping the audience to see how you think and giving them a new perspective. The worst case scenario is that they disagree with you – but at least they are listening.

3 ⁄

What don’t I know

The anxiety that accompanies public speaking makes many of us keen to shy away from areas outside our comfort zone. The last thing we want to do is to start talking about something that we don’t understand and to get it wrong in front of everyone.

But this doesn’t mean that you should avoid these subject areas

– use your speaking as an opportunity to share your own limitations. It will build rapport with the audience and help them to contribute and build a dialogue, even if only inside their own heads.

If you are interested in how something in your subject area might affect another specialist field, there is nothing wrong with simply raising the question.

It can even be done with humour.

A frequent line in my talks is: “I could imagine that this might have some impact on X, but sadly my tiny brain can’t quite work it out.”

4 ⁄

Trust your own style

Let yourself get in touch with the authentic voice inside you, don’t feel that you have to conform to a particular style or structure that is imposed on you. Once you’ve found what it is that you want to say, build your speaking style around that. No two professionals have the same experiences and, likewise, no two will have the same speaking style. Yours will develop over time. Always listen to feedback but at the same time be brave in following your voice to ensure that when you do stand up to speak, the audience has the privilege of hearing the real you.

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CIArb NEWS BRANCH ROUND-UP SCOTLAND, UK

CHARLOTTE LELONG

Inverness hosts ICEA consultation The Scotland Branch’s Northern Chapter supported a consultation event in July, held by the International Centre for Energy Arbitration (ICEA) in Inverness.

Representatives of the energy and legal sectors attended the event, some travelling from Dubai. The ICEA is a joint venture between the Scottish Arbitration Centre and the Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP) at the University of Dundee.

Aimed at developing Scotland into an international centre for energy arbitration, the ICEA builds on the Arbitration (Scotland) Act 2010 that put Scotland at the forefront of

(l-r) Andrew Mackenzie, ICEA Secretary General; Dr Abba Kolo, CEPMLP Senior Lecturer; Sarah Stuart ACIArb, Chair of the Scotland Branch’s Northern Chapter; Brandon Malone, ICEA Co-Director; Anne Macdonald, Harper Macleod; Ian Couper, Chief Executive of Energy North

NIGERIA

NORTH EAST, UK

LONDON, UK

Branch appoints ‘An audience with…’ the DG new manager

Employment dispute seminar

The Nigeria Branch has appointed a new General Manager. Elizabeth Oluwakemi Eweje MCIArb, a member since 2005, is a legal practitioner and joined the Institute after practising law for the past 10 years.

The second Vice Chairman of the branch, Mr Tunde Busari FCIArb, was conferred with the title of Senior Advocate of Nigeria (SAN) last month.

Mr Busari is an Executive Committee member and a tutor.

The branch is honoured to be associated with him.

The branch will hold its Annual General Conference and Gala night on 6-7 November 2014.

The theme of the conference is ‘Arbitration to the rescue! How ADR can grow our economy.’

It promises to be a well-organised and interesting event since speakers from various sectors will be discussing the benefits of ADR.

The London Branch held its 11th Annual Mediation Seminar entitled ‘Mediation in Employment – the new regime’, over the summer, which once again was generously hosted by Clyde & Co. The event, which was held in July, was chaired by Branch Chair, Margaret Bickford-Smith QC MCIArb. An expert panel comprising three eminent speakers looked at employment dispute resolution since the introduction of compulsory early conciliation on 6 May 2014.

The speakers at the mediation seminar were Judge Brian Doyle, the President of Employment Tribunals in England and Wales, Naomi Ellenbogen QC, an experienced mediator and employment specialist and joint Head of Littleton Chambers, and Paul Newdick CBE QC (Hons), experienced litigator

The North East Branch held ‘An audience with…” event in September with CIArb’s Director General Anthony Abrahams MCIArb as guest speaker on the subject of ‘Bullets, Arbitration, Tanks and Mediation!’

Mr Abrahams, formerly a Colonel in the Territorial Army (TA), undertook a tour of Iraq with the remit of developing the rule of law and dealing with human rights issues.

Following an introduction by NE Branch Chairman Rod Appleyard FCIArb, Mr Abrahams gave a captivating talk on his time in Iraq, which followed a long period of service in the TA. Mr Abrahams considered the rule of law and related matters in a wartime environment, together with some of the issues arising from a coalition of so many nations, each with its own laws.

Schofield Sweeney kindly hosted at its Leeds offices.

modern arbitral law and practice.

It launched a consultation with the energy sector to establish trends and requirements.

At the event, titled ‘Arbitration in the Energy Sector’, Andrew Mackenzie, Secretary General of the ICEA, introduced two speakers: Brandon Malone MCIArb, Co-Director of the ICEA, and Dr Abba Kolo, Senior Lecturer at the CEPMLP. Mr Malone spoke about Scottish arbitration under the Arbitration (Scotland) Act 2010, the Scottish Arbitration Centre, and the establishment of the ICEA. Dr Kolo discussed arbitration in the international energy market and the role of CEPMLP in the ICEA.

and mediator, and consultant at Clyde & Co. Then, on 11 September, London Branch and LCIA held their 10th annual joint seminar entitled ‘Africa and Arbitration: Predicting the future through historical lenses’ hosted by Stephenson Harwood.

The seminar was chaired by Dr Emilia Onyema FCIArb of the London Branch committee.

Distinguished speakers included Edwin Glasgow QC CBE FCIArb of 39 Essex Street, Jeremy Gauntlett SC of Brick Court Chambers, Duncan Bagshaw ACIArb, Registrar of Mauritius’ LCIA-MIAC Arbitration Centre, Kamal Shah, Head of Stephenson Harwood’s Africa and India Groups and Njeri Kariuki C.Arb, Advocate of Kenya.

A question and answer session was followed by a reception, which was generously provided by the hosts, Stephenson Harwood.

• For longer versions of branch news → www.ciarb.org/branch-news November 2014 | THERESOLVER

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CIArb EVENTS

One of many questions from the floor

7TH MEDIATION SYMPOSIUM The 7th Annual Mediation Symposium was held on 9 October at the London headquarters of multinational law firm Clifford Chance.

The successful event, which boasted an impressive turnout, focused on online mediation and the challenges and opportunities it presents for today’s mediator.

Chaired by Aled Davies, founder of Mediator Academy, the day’s programme covered a broad range of topics. Many of the themes that arose as part of the panel discussions honed in on critical issues such as the increased use of online dispute resolution (ODR); how mediators can improve their skillsets to meet the changing demands of the profession; and how they can better engage parties in the process. Delegates were privileged to hear presentations by industry leaders including special guest speaker, Ethan Katsh, the ‘founder’ of ODR (see also page 10).

Event chair Aled Davies addresses the audience

Delegates applaud presentations by keynote speakers

Professor Elizabeth Stokoe

Graham Ross, Vice President, Modria

A delegate puts a question to the panel

16

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Speaker Jo Holland

Ethan Katsh, the ‘founder’ of ODR Establishing new connections

Speaker Mike Lind

Delegates networking

Speaker Pablo Cortes

Attentive delegates enjoy the presentation by Mike Lind

Director General of CIArb, Anthony Abrahams MCIArb and Tony Marks FCIArb

November 2014 | THERESOLVER

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WHAT’S ON

ONLINE

Further information on all professional training courses can be found at: → www.ciarb.org/course-finder Education Team • T + 44 (0)20 7421 7439 • F + 44 (0)20 7404 4023 • E education@ciarb.org

TRAINING COURSE

DATE (2015 unless stated)

LOCATION

CPD POINTS

TOTAL FEE (incl. VAT) £480

ALTERNATIVE DISPUTE RESOLUTION Introduction to ADR

18 November 2014

UK

5

Introduction to ADR

10 March

UK

5

£480

Introduction to ADR

12 May

UK

5

£480

Introduction to Mediation

10 February

UK

5

£480

Module 1 Mediation

16, 17, 18, 19, 23 March

UK

30

£2,400

Module 2 Mediation

24 March

UK

6

£1,560

Module 4 Mediation

Open Entry

UK

0

£660 £480

MEDIATION

CONSTRUCTION ADJUDICATION Introduction to Construction Adjudication

12 March

UK

5

Module 1 Law of Obligations and Civil Evidence

2 March

UK

25

£1,320

Module 2 Construction Adjudication

13 April

UK

18

£1,320

Module 3 Construction Adjudication

9 March

UK

17.5

£1,860

Accelerated Route to Membership

19-20 February

UK

6

£1,320

Accelerated Route to Fellowship

30-31 March

UK

15.5

£1,860

DOMESTIC ARBITRATION Introduction to Domestic Arbitration

21 April

UK

5

£480

Module 1 Law of Obligations and Civil Evidence

2 March

UK

25

£1,320

Module 3 Domestic Arbitration

9 March

UK

17.5

£1,860

Module 4 Domestic Arbitration

30 March

UK

12

£1,320

Accelerated Route to Membership

17-18 February

UK

6

£1,320

Accelerated Route to Fellowship

25-26 March

UK

15.5

£1,860

Introduction to International Arbitration

3 March

UK

5

£480

Introduction to International Arbitration

25 June

UK

5

£480

Introduction to International Arbitration

29 November 2014

Turkey

-

Contact branch

Module 1 Law of Obligations and Civil Evidence

2 March

UK

25

£1,320

Module 2 International Arbitration

9 March

UK

18

£1,320

Module 3 International Arbitration

16 December 2014

Cyprus

-

Contact branch

Module 3 International Arbitration

9 March

UK

17.5

£1,860

Module 4 International Arbitration

30 March

UK

12

£1,320

Diploma in International Commercial Arbitration Oxford

3 January

Malaysia

-

Contact branch

Diploma in International Commercial Arbitration Oxford

13-21 September

INTERNATIONAL ARBITRATION

UK

36

£6,000

Diploma in International Commercial Arbitration Oxford (Parts 1 & 2) 13-21 September and 26 October

UK

48

£7,200

Accelerated Route to Membership

21 November 2014

UAE

-

Contact branch

Accelerated Route towards Fellowship & Award writing Examination

5 December 2014

British Virgin Island

-

$2,000

Accelerated Route to Membership

17-18 February

UK

6

£1,320

Accelerated Route to Fellowship

25-26 March

UK

15.5

£1,860

25 November

UK

5

£300

CAREER DEVELOPMENT COURSES Avoiding Conflict in Business

CIArb FLAGSHIP EVENTS CIArb 2nd DAS Convention (invitation only) 14 November 2014 Fee: £200 (incl VAT) CIArb Alexander Lecture 21 November 2014 Fee: Free CIArb Centennial Launch Conference: Back to our Roots 22-24 January 2015 Fee: CIArb Member full delegate package: £360 Non-Member full delegate package: £410 More details can be found at: → www.ciarb.org/conferences

18

FEATURED COURSES 2015: CIArb’s one-day introductory courses are now available to study online at £250 + VAT per course.

• Introduction to Mediation • Introduction to Domestic Arbitration • Introduction to International Arbitration • Introduction to Construction Adjudication The online function enables you to study any of the above courses flexibly whenever and wherever you choose.

You will be able to access the materials, watch powerpoint presentations and ask questions to allocated tutors.

You can train yourself at your own pace and complete the assignment to gain an Introductory Certificate and become an Associate member.

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Extensive knowledge and practice in: Contracts validation, contractual claims, expert assignments, negotiation, adjudication, mediation and arbitration in the construction and real estate industries.

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