Resolver february 2012

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

www.ciarb.org

UK government backs mediation in the workplace Is mandatory mediation effective?

ADR at the London 2012 Olympics The challenges of e-discovery How to conduct a Med-Arb Guide to training and courses

February 2012

A new route to resolution –

How arbitration will change the landscape of family law

1  THERESOLVER | November 2010

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For our complete arbitration book list visit www.kluwerlaw.com

ADR in Business.

Practice and Issues Across Countries and Cultures

International Arbitration and Mediation

Volume II

By Michael McIlwrath & John Savage

Edited by Arnold Ingen-Housz Drawing on a wealth of new sources and developments, including the flourishing of hybrid forms of ADR, the subject matter has been largely augmented and expanded on two fronts: in-depth analysis (both descriptive and comparative) of methodology, expectations and outcomes and extended geographical coverage across all continents.

January 2011, hardback, ISBN: 9789041134141 Price: EUR 150.00 / USD 203.00 / GBP 120.00

A Practical Guide This book is intended as an easily accessible desktop resource for lawyers who regularly counsel businesses when negotiating international deals, and for those who represent the same clients in achieving a successful resolution when disputes emerge.

The text is divided into chapters that follow the life cycle of an international commercial dispute as seen through the eyes of the parties, from when they agree how to resolve disputes in their contracts to the endgame of enforcement.

Additionally, the appendices include a number of model submissions for further reference.

January 2010, hardback, ISBN: 9789041126108 Price: EUR 150.00 / USD 203.00 / GBP 120.00

Join the experts. Join the discussion.

Take part in the blog today by visiting www.kluwerarbitrationblog.com Become part of the discussion by posting your comments

PLACE YOUR ORDER NOW

Visit: www.kluwerlaw.com to order your copy or Phone: +31 (0) 172 64 1562 Fax: +31 (0) 172 64 1555

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CONTACTS

Jeffrey Elkinson

LEADER

Redactive Publishing Ltd 17 Britton Street, London EC1M 5TP T: +44 (0)20 7880 6200 EDITORIAL T: +44 (0)20 7880 6200 E: editorial@ciarb.org Editor: Rima Evans Sub editor: Kate Williamson Art editor: Adrian Taylor Picture editor: Sam Kesteven ADVERTISING Sales manager: Steve Grice T: +44 (0)20 7880 6220 E: steve.grice@redactive.co.uk Sales executive: Edward Taylor T: +44 (0)20 7880 6243 E: edward.taylor@redactive.co.uk PUBLISHING DIRECTOR Jason Grant E: jason.grant@redactive.co.uk PRODUCTION Production manager: Jane Easterman Production executive: Aysha Miah © THE RESOLVER is published on behalf of the Chartered Institute of Arbitrators (CIArb) by Redactive Publishing Ltd (RPL), 17 Britton St, London EC1M 5TP. This magazine aims to include a broad range of opinion and professional issues and articles do not necessarily reflect the views of CIArb nor should such opinions be relied upon as statements of fact. All rights reserved. This publication may not be reproduced, transmitted or stored in any print or electronic format, including but not limited to any online service, any database or any part of the internet, or in any other format in whole or in part in any media whatsoever, without the prior written permission of the publisher. While all due care is taken in writing and producing this magazine, neither CIArb nor RPL accept any liability for the accuracy of the contents or any opinions expressed herein. Printed by Pensord Press Ltd ISSN 1743 8845 CIArb ENQUIRIES

WELCOME TO 2012’s first issue of The Resolver. In this edition you will find coverage of a UK government report which supports the growth of workplace mediation (page 4), a look at the role of sports arbitration in the upcoming Olympics (page 6) and our cover feature on family arbitration (page 10). You can also catch up on all our regular features.

It is a great honour to take on the role of President of CIArb for 2012. Firstly I must acknowledge our retiring President, Doug Jones AM FCIArb, and I am sure all members will join with me in thanking him for his hard work in 2011.

Last year saw the unprecedented event of a Governance Tribunal. On behalf of myself and the membership, I extend thanks to Sir Anthony Evans FCIArb, John Tackaberry QC FCIArb and Eugen Salpius for their hard work and time.

The coming year should prove to be both exciting and challenging for CIArb. I look forward to welcoming the new Director General within the next few months and to working with our revitalised Board of Trustees led by John Wright FCIArb and a Board of Management under the leadership of Charles Brown FCIArb. Our mission statement is to promote all forms of dispute resolution. With this in mind, I look forward to encouraging – and, where possible, leading – members in training sessions where we can lend our assistance to those who live in countries where, for example, the court system is overburdened or simply not working as a consequence of war or internal civil strife.

To implement training programmes that establish viable ADR systems can have an enormous positive impact on the lives of the people and on the economic well-being of the country itself. I shall be reporting further on this initiative.

In the meantime, let me wish all our members a peaceful and joyous 2012.

“Programmes to establish viable ADR systems can have an enormous positive impact”

Jeffrey Elkinson FCIArb President of CIArb Chartered Institute of Arbitrators 12 Bloomsbury Square, London WC1A 2LP, UK T: +44 (0)20 7421 7444 E: info@ciarb.org W: www.ciarb.org MEMBERSHIP T: +44 (0)20 7421 7447 E: memberservices@ciarb.org COURSES & QUALIFICATIONS T: +44 (0)20 7421 7439 E: education@ciarb.org LEGAL SERVICES T: +44 (0)20 7421 7424 Sandra Greenaway E: sgreenaway@ciarb.org MARKETING, COMMUNICATIONS & SPONSORSHIP T: +44 (0)20 7421 7488 Sarah Ball E: sball@ciarb.org

CONTENTS WATCH

4-5 News: UK report backs workplace mediation; new arbitration rules for outer space 6-7 Analysis: The rise of sports arbitration and how it will be used at London 2012 9 Law round-up: Barclays Bank plc v Nylon Capital LLP; Systech International Ltd v PC Harrington Contractors Ltd

OPINION

EVENTS T: +44 (0)20 7421 7427 E: events@ciarb.org

8 17

ROOM HIRE T: +44 (0)20 7421 7423 Giles Andrews E: roomhire@ciarb.org

REGULARS AND FEATURES

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.

Registered Charity N0− 803725

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Farhat Jabeen: Why Hong Kong must keep pace with developments in e-discovery My toughest dispute; Best of the ADR debate

Cover: An innovative scheme in England to train family law specialists in arbitration could transform the resolution of financial disputes between family members How to... conduct a Med-Arb CIArb news: CIArb sells IDRS; new Board of Trustees; latest branch news What’s on: round-up of upcoming training courses February 2012 | THERESOLVER

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WATCH

Roebuck Lecture is taking place in London 17 May CIArb’s with guest speaker Michael O’Reilly. To find out more visit: → www.ciarb.org/conferences

UK report backs workplace mediation

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Government concludes that increased use would benefit employment relations The UK government has pledged to support the growth of workplace mediation in a bid to reform the existing approach to resolving disputes at work.

Keen to make more use of early dispute resolution as a means of dealing with workplace problems and reduce reliance on employment tribunals, the government has set out measures to promote the use of mediation.

These were outlined in its response to a consultation paper on workplace disputes published in November 2011. The report, Resolving Workplace Disputes: Government Response to the Consultation, said: “A significant growth in mediation of workplace disputes has the potential to lead to a major and dramatic shift in the culture of employment relations.

Benefits would include a reduced number of employment tribunals, reduced fears of tribunals among employers, and indirectly a benefit to business confidence about job creation.”

However, barriers to increased use of mediation include cost – especially for small businesses –

The report suggests that mediation could reduce employment tribunals

and a lack of understanding and familiarity with the process.

Proposals to overcome these problems included: • undertaking a pilot scheme exploring how larger businesses in the retail sector can share their expertise with smaller businesses in their supply chain; • funding mediation for suitable candidates from selected smaller businesses through a regional mediation training scheme. These new mediators will then form local

mediation networks in their regions and provide low-cost mediation to other organisations in their network; and • continuing to work with the industry to embed mediation in the resolution of workplace disputes.

Clive Lewis ACIArb, Director of Globis Mediation Group, which provides CIArb’s workplace mediation training, welcomed the government’s commitment to supporting workplace mediation.

“Anything that raises the profile of

mediation in the workplace is good news,” he said. “Currently it is underutilised, even though the business case is well known and everyone knows mediation is quicker and cheaper than litigation.”

The proposals reflect a wider focus by the government on the potential of mediation, particularly in the justice system.

Although cuts to legal aid have been announced by Justice Secretary Ken Clarke, the government is increasing spending on mediation and legal advice in support of mediation for private family law cases (such as divorce) by two-thirds to £25 million a year.

A new rule requires mediation by any party contesting the terms of separation.

Claims for debts and damages are already subject to judicial encouragement towards mediation backed by adverse costs orders for unreasonable refusal.

From this October mediation will be compulsory in small claims.

Other claims up to £100,000 will have a Mediation Information and Assessment Meeting.

…but there are fears that general mediation push may hamper access to justice The UK government’s current drive to get parties to use mediation instead of court litigation is diverting attention away from its cutback of resources for the civil justice system, according to Professor Dame Hazel Genn QC. Speaking at CIArb’s sell-out 2011 Mediation Symposium, Genn argued that the government’s drive to push parties into mediation reflected a “jaundiced view of law” and threatened to restrict people’s access to justice.

“Mediation may be about access, but it is not about justice. Mediators aren’t there to protect the interest of any party,” she said. Mediators aim to facilitate a settlement, she added, rather than provide access to justice.

Genn cited research which showed that while there are high levels of satisfaction among volunteers using mediation, parties don’t like to feel pressured into making a settlement, and while successful mediation can reduce costs, unsuccessful mediation can actually increase them.

Stressing that she views ADR methods as a “valuable supplement to a well-functioning justice system”, Genn said parties should not be forced into mandatory mediation, and this should not form the basis of legal reform.

This resistance to mandatory mediation was echoed by other speakers

at the event, which focused on the future of mediation and explored how the industry might develop over the next 10 years.

Keynote speaker The Hon Mr Justice Ramsey also argued that introducing mandatory mediation would be unwise, stating that “the essence of mediation is that it should be voluntary”. He added that there is a need for mediation to assert itself as a form of dispute resolution in its own right, so that it will no longer be seen as “the best of a bad bunch”.

Ramsey J also argued strongly against introducing a Mediation Act to regulate mediation. “We should keep an eye on the fundamentals as these are essential to mediation and would be eroded if we went down a statutory route,” he warned.

This was supported by CEDR’s Chief Executive Karl Mackie FCIArb, who said mediation was still developing and that to impose regulations at such an early stage would be potentially “dangerous”.

The symposium, held in London last October, was attended by more than 100 delegates.

To find out more about CIArb events go to: → www.ciarb.org/conferences

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“I tried to examine the thongs surreptitiously without attracting attention from those around me” → See my toughest dispute, by John Redmond FCIArb, page 17

Use of construction mediation in Scotland remains low, according to a survey carried out by Strathclyde University.

However, the research also showed that where mediation has been used, it has been largely successful.

A research team that surveyed small and medium-sized construction firms in autumn 2011 concluded that “mediation may remain largely unnoticed, its potential unrealised” in the sector.

Its report added: “Take-up is low and sophisticated awareness of the process and the benefits it can reap for participants scant.”

The survey found that while 80 per cent of respondents said they were aware of mediation, few had practical experience of it or felt able to comment on its merits or disadvantages.

When asked about policies on mediation use, only 19 per cent said their firm had a policy to consider mediation. A sizeable minority – 13 per cent – actually had a policy never to mediate.

However, where mediation was used – the research tracked 37 cases where it had been adopted – it was largely successful. A total of 65 per cent settled, with another 14 per cent partially settling.

The research report said: “Parties also seemed generally satisfied with the mediation process, in terms of factors such as speed, cost, the mediator and outcomes produced.”

In terms of barriers to mediation’s growth, the main factors cited were a lack of awareness and a negative perception of the process both in the construction industry and among construction lawyers.

The prominent place of adjudication in the construction industry also blocked out scope for increased mediation use, according to 47 per cent of participants.

The research was led by Andrew Agapiou MCIArb, Director of Professional Studies, Department of Architecture and Professor Bryan Clark, Law School Programme Leader both at Strathclyde University.

Andrew Agapiou said: “Much effort thus far has been expended selling mediation to lawyers through educational drives, conferences and training. Much more needs to be done on the ground in repeating and escalating such efforts for the client base.”

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Mediation use low in construction

The sky is no longer the limit for arbitration: the Permanent Court of Arbitration (PCA) has adopted new rules of procedure for disputes relating to outer-space activities.

The project was set in motion in 2009 in response to a perceived need for specialised dispute resolution mechanisms in the rapidly evolving field of outer-space activities. The new rules became effective in December 2011.

The rules were developed by the International Bureau of the PCA, in conjunction with an Advisory Group of leading experts in air and space law.

Changes to the Czech Arbitration Act A new amendment to the Czech Arbitration Act aims to strengthen the position of consumers in arbitrations.

Last month the Czech president signed an amendment to Act No 216/1994 Coll., the Czech Arbitration Act. The amendment will become effective in spring 2012.

The focus is on consumers, after several recent decisions of the Czech Supreme Court and Constitutional

Court regarding arbitration clauses in business-to-consumer relations.

The proposed changes include: • Arbitration agreements in relationships between businesses and consumers must be explicit and must be drawn up as a separate agreement to the main contract.

• Arbitration agreements in relationships between businesses and consumers must include: information on the arbitrator(s) or

that the dispute will be resolved by a permanent arbitration court; the manner of commencement and form of conducting the arbitration; the arbitrators’ fees and expected expenses of arbitration and the manner of their payment and adjudication; the place of arbitration; the manner and form of the delivery of the arbitral award; and information that the award is enforceable.

• The business must explain in detail to the consumer what the consequences of entering into an arbitration agreement may be.

• An arbitrator in consumer disputes must meet stricter requirements – they should have a university degree and be enrolled on the public list of arbitrators for resolving consumer disputes which is maintained by the Ministry of Justice of the Czech Republic.

• Arbitrators in consumer disputes cannot make decisions according to equitable principles.

February 2012 | THERESOLVER 5

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NEWS ANALYSIS adr aT the olympics Alternative dispute resolution now plays a huge role in sporting disputes. So how will issues be resolved during London 2012?

We ask Ed Procter

Image: istock

Q

Fair play at the Games Q: When did ADR start to make a real impact on the sporting world?

A: In the 1980s, when there was a regular increase in the number of international sports-related disputes but no independent authority specialising in sportsrelated problems outside of the normal court system, an international body was set up called the Court of Arbitration for Sport (CAS). It is headquartered in Lausanne and is regarded as the “supreme court” for world sport.

However, here in the UK an independent dispute resolution service for sport was not established until the late 1990s.

Sport Resolutions UK was set up in the wake of a well-known dispute involving the runner Diane Modahl, who was charged with a doping violation by the then British Athletic Federation (BAF) in the run-up to the Commonwealth Games in 1994.

Modahl contested the finding and was eventually exonerated. She went on to sue the BAF but lost.

The BAF ended up with a massive legal bill, which contributed to it going into administration, and Modahl herself ended up facing severe financial difficulties.

The lesson was that this was not the way to resolve a sporting dispute – neither party really won.

We were set up as a learning point of that case really. We are a notfor-profit company established by nine member organisations which represent all sectors of the sport industry. Last year we had 180 enquiries, which resulted in us resolving 78 disputes.

Generally within sport, courts

are now reluctant to interfere in disputes unless there is some big issue of law or great injustice.

Commercial disputes in the sporting world would probably still go to court, but if it’s a sports issue, ADR is mainly used.

Q: Is arbitration the main ADR tool for resolving sports-related disputes?

A: Three-quarters of our work is arbitration and less than a quarter mediation. However, we are beginning to see an increase in mediation. This might be something to do with the state of the world economy. Certainly what we are hearing is that in today’s climate, clients are a lot more cost-conscious so there is less of a reluctance to mediate. In arbitration there is a risk you could lose and would have to pay the legal costs of the other party; that is not the case for mediation.

We have previously tended to find that parties are reluctant to mediate – sportspeople are competitive and like to win – but in the past six months we have seen double the number of mediations than in the previous year to 18 months.

“We have found that parties can be reluctant to mediate – sportspeople like to win”

Q: How will sports disputes be handled during the Olympics?

A: Sport Resolutions doesn’t have any jurisdiction as an arbitral body during the course of the Olympics and Paralympics. Instead, the International Olympic Committee rules recognise CAS as the arbitral body during the Games, from 27 July to 12 August, so all disputes are referred there.

CAS will set up an ad hoc division based in London with two nominated co-presidents and 12 arbitrators who will be on standby.

They work on an expedited basis where they try to resolve all disputes within a 24-hour period because of the speed at which the competition takes place. For example, there may be a dispute over allegations of corruption against a judge which necessitates a speedy resolution since not only is it an embarrassing situation, but also because they are awarding medals.

Typically a dispute will come in during the afternoon and a hearing will take place in the evening. The arbitrator will write up the award

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so a decision is passed down by breakfast time the next morning.

For the Paralympic Games CAS doesn’t have an ad hoc division that waits for disputes to arise; instead they are dealt with out of its offices in Switzerland.

If you look over the past four Olympic Games the most disputes that came before CAS was 15 at Sydney in 2000. The fewest – just six – was at Atlanta in 1996.

Q: What are the typical kinds of disputes dealt with at the Olympics?

A: CAS will deal with anti-doping disputes or perhaps athlete selection or eligibility. There are nationality disputes – for example, an athlete may have appeared at a previous Games representing South Africa but then appear representing Sweden, which could be challenged. Or there may be disputes over the number of places that a National Olympic Committee has been awarded in certain events.

Once the competition gets under way you get disputes about competition results or placings,

especially in sports such as gymnastics or diving where there is a judging panel, which can be more subjective than a race where the winner is simply the first over the line. At previous Games there have been some obvious “home” decisions which have been challenged.

Of course, not all disputes are immediately referred to CAS. During the Games there will be many disputes resolved at umpire level. For example, if an athlete is disqualified from a race because they handed over the baton too late, the issue would first be referred to a technical referees’ committee. The role of CAS is not to take the place of the on-field umpire, referee or judging panel.

Q: Do any disputes last longer than the Games?

A: Yes. Often it’s where there is a doping violation. There was the famous case involving sprinter Ben Johnson in 1988, where he won the gold medal in the men’s 100m but then tested positive. If this happened at the London Olympics

the athlete would be immediately suspended and have the right to an expedited hearing concerning the lifting of their suspension. A substantive hearing would usually take place after the Games. Often the hearing process wouldn’t be completed until many weeks after the Olympics finished, which means you wouldn’t know who won the medal until a few weeks after either.

It is mainly doping disputes that go on longer because of the scientific evidence required and because these sorts of disputes have become more complex.

Q: What is Sport Resolutions’ role within the Olympics?

A: We have a number of roles.

In the run-up to the Games we are acting as the appeal body for most UK sport governing bodies’ selection policies. A lot of the governing bodies are saying that competition for places in these home Olympics is like it’s never been before. If an athlete isn’t selected and they believe a

governing body hasn’t followed its procedure on selection policy correctly they have a right of appeal, which we would resolve using arbitration.

We also operate the National Anti-Doping Panel, which will adjudicate on any anti-doping disputes involving UK athletes in the lead-up to the Games.

In addition, during the course of the Games our main role is working with the Bar Council, Law Society and British Association for Sport and Law to run what’s called the Pro Bono Legal Advice Representation Service.

This provides free legal advice for athletes, National Olympic and Paralympic Committees, international sports federations and other accredited individuals from 9 July to 12 September.

Under this we provide a sport advocacy service offering advice and representation to individuals and teams taking cases before CAS. Since disputes are heard so quickly we need experienced lawyers on standby to assist athletes and governing bodies to present their case before CAS properly. We will also provide a general service providing help to athletes with legal problems or disputes arising from non-sporting issues, such as discrimination or personal injury.

It’s going to be an exciting time and the response we have had from individuals, law firms and barristers’ chambers to be involved at the Games has been overwhelming. n Ed Procter is Executive Director at Sport Resolutions UK, the independent dispute resolution service for sport

February 2012 | THERESOLVER 7

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OPINION ESI AND E-DISCOVERY

Farhat

Jabeen

I

Hong Kong needs to confront the challenges of electronically stored information and electronic discovery if it is to maintain its position as a favoured location for international arbitration

ONLINE

Join the debate at → www.ciarb.org/forum or on CIArb’s LinkedIn group → www.linkedin.com Farhat Jabeen is a Litigation Support Specialist with Merrill Corporation. She specialises in document management, trial preparation, electronic discovery and computer forensics for the Asia Pacific region

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INTERNATIONAL ARBITRATION Paper and electronic in Asia is a growth industry. documents affect the process of Fuelled by a procession of discovery in different ways. One of cross-border transactions and an the main benefits of using ESI is ever-growing desire for Asian that it is less costly and easier to clientele, the number of disputes duplicate. Often shared via email resolved in the region has and the internet, ESI can reside in increased, with parties favouring a variety of locations including arbitration in jurisdictions such as hard drives, networks and Singapore and Hong Kong. removable media. With the use of In line with this trend, an electronic bundles (CDs with a increasingly important issue in hyperlinked index to digital the region is how to address the documents), data can be shared discovery of electronically stored easily between parties and the information (ESI) tribunal, aiding in arbitration. portability, Hong Kong’s Civil In today’s document Justice Reform technologyreview and quick makes no specific driven age, retrieval of mention of how to information. business information is no handle ESI, nor does ESI can often it provide any longer primarily be searched guidance in using managed through and retrieved e-discovery paper but on more efficiently computers, than paper servers and even mobile phones. documents. Techniques such as Huge volumes of information are keyword search, culling and created and stored over a range de-duplication assist in speeding of technologies – any of which up the review process by filtering could contain documents relevant information through criteria such for discovery. as custodian name, language and Traditionally there is a central issues. significant difference between the ESI also contains metadata – amount of information used by data about data – which is arbitrators to resolve disputes and embedded as tagged information the amount required by courts in to an electronic file and is invisible litigation; limited discovery – and when a document is printed. thus lower costs – make Information such as author, file arbitration more favourable. As creation date or last access helps arbitration is a party-controlled to create a chronological order of process, it is typical for the scope events and organise information of discovery to be determined by with the tap of a few keys. the parties at the outset of In essence, the use of arbitration, or by the tribunal technology furthers the aims of based on submissions made by dispute resolution and achieves the parties. the core values of arbitration:

increased efficiency, contained costs and a reduction in time.

Recent developments in Asian jurisdictions outside of Hong Kong have supported moves to rethink dispute resolution and tackle the issues surrounding ESI. Complementing the discovery rules in Order 24 of the Singapore Rules of Court, the Electronic Discovery Practice Direction 3/2009 came into effect in 2009.

Acting as an opt-in framework for giving discovery, this move by the Singapore judiciary exemplifies an international commonality with Western jurisdictions.

Under the Civil Justice Reform of April 2009, the Hong Kong Court has the power to force parties to address issues of electronic information at an early stage. But as a reform covering a broad spectrum, no specific mention is made on how to handle ESI, nor does it provide any guidance in using e-discovery.

It is clear that Singapore is moving forward by addressing the use of e-discovery to the benefit of practitioners and clients alike. For example, a steering committee chaired by the Singapore Supreme Court will lead an e-discovery initiative later this year to promote technology aiding the pre-trial discovery process.

As both a leading financial business centre and international legal capital of Asia, Hong Kong remains an attractive prospect for both litigation and arbitration work. However, without similar guidance and progressive direction, Hong Kong may soon find itself lost in discovery.

THERESOLVER | February 2012

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An overview of recent key court cases

LAW ROUND-up

IS A NEUTRAL ‘EXPERT’ ENTITLED TO DECIDE on HIS OWN JURISDICTION?

THE CASE ○ Expert Determination

Barclays Bank plc v Nylon Capital LLP [2011] EWCA Civ 826

Barclays Bank (BB) and Nylon Capital LLP (the LLP) entered into an investment agreement to establish two hedge funds incorporated in the Cayman Islands.

BB became a partner in the LLP along with one of its employees and others. The agreement provided, among other things, for the allocation of profits between the members of the LLP. It also provided for expert determination in case of a dispute. Under this agreement, the parties agreed that the neutral was to act as an expert and not as an arbitrator, and that the expert’s decision was to be final and binding. Issues arose as to whether all the profit BB had made on its initial capital investment in the hedge funds should be brought into account for the purposes of allocation. The LLP contended that capital profit made by BB on its investment should be included within the allocation, and BB alleged that it had to be carried out by reference to the accounts of the LLP. Issues were raised as to the jurisdiction of the expert. The agreement provided for the expert to determine his own jurisdiction. BB contended that, despite this provision, it was ultimately for the court to determine the expert’s jurisdiction. The LLP argued that the expert determination clause entitled the neutral to determine not only the meaning of the investment agreement but also whether he had jurisdiction initially to determine his own jurisdiction.

The expert’s decision on jurisdiction can always be challenged ○ THE judgement

Etherton J decided that courts are the final decision-makers as to whether an expert has jurisdiction, even if a clause purports to confer that jurisdiction on the expert in a manner that is final and binding.

The court held that, whatever the expert decides on jurisdiction, his decision is not final. It can always be challenged, unlike his determination of a matter within his jurisdiction. Etherton J concluded that, in the interests of

justice and convenience, the court should, in this case, determine the jurisdiction of the expert. ○ WHAT IT MEANS

This case provides guidance as to the court’s approach concerning the entitlement of experts to decide on their own jurisdiction. The rationale of Fiona Trust & Holding Corporation & Ors v Yuri Privalov & Ors [2007] EWCA Civ 20 does not apply to expert determination clauses. As a result, the court will determine the question of the expert’s jurisdiction itself rather than refer the question of jurisdiction to the expert for him to determine it first.

Full judgement available at:

→ www.bailii.org/ew/cases/EWCA/ Civ/2011/826.html

ENFORCEABILITY OF ADJUDICATION AWARDS AS A PRECONDITION FOR PAYMENT

THE CASE ○ AdjudicaTION

Systech International Ltd v PC Harrington Contractors Ltd [2011] EWHC 2722 (TCC)

PC harrington (PCH) employed Tyroddy Construction Ltd (TC), by way of three separate sub-contracts, to work on three different projects at London’s Wembley Stadium.

These contracts provided for a retention of three per cent. A dispute arose as to the payment of the retention and TC referred the contracts to adjudication. Mr Doherty was appointed by the Royal Institution of Chartered Surveyors to act as adjudicator. He was employed by Systech International and therefore all payments were to be made to the latter.

In the course of the adjudication, PCH challenged the adjudicator’s jurisdiction. The adjudicator decided that he had been properly appointed and would therefore continue with the adjudication. PCH submitted its response and reserved its position as to the adjudicator’s jurisdiction, but it also contended that no retention could be due because it had overpaid TC. Ultimately, the adjudicator issued his decisions in relation to the three adjudications and found in favour of TC on similar grounds. PCH issued proceedings and successfully sought a declaration that the adjudicator’s decisions were not enforceable on the basis that he had failed to address the defence put forward by PCH, thereby breaching the rules of natural justice. Systech International issued proceedings seeking payment from PCH for Mr Doherty’s fees.

PCH argued that he was not entitled to payment on the grounds that there was a total failure of consideration. This was on the grounds that Mr Doherty’s decisions proved to be unenforceable by reason of a breach of the rules of natural justice.

A party will generally be liable for fees even if the decision is unenforceable ○ THE judgement

The court referred to the principle of total failure of consideration and decided that, despite the fact that the adjudicator’s decisions were unenforceable by reason of breaches of natural justice, he spent considerable time dealing with jurisdictional objections raised by PCH, reviewing the referral, the response, the reply, the rejoinder and the very substantial amount of documentation and evidence attached to the relevant files.

Therefore, it concluded that there was not a total failure of

consideration by the adjudicator, and that he was entitled to his fees. ○ WHAT IT MEANS

Where a party has participated in the adjudication, even without prejudice, it will generally be liable for reasonable fees and expenses of the adjudicator, even if the decision is unenforceable.

The position might be different if the party makes an assertion of lack of jurisdiction and takes no part in the adjudication, or if there is a suggestion of dishonesty, fraud or bad faith on the part of the adjudicator.

Full judgement available at:

→ www.bailii.org/ew/cases/EWHC/ TCC/2011/2722.html Both reports by Tony Marks FCIArb, Director of Legal Services and Julio César Betancourt MCIArb, Head of Research and Academic Affairs at CIArb February 2012 | THERESOLVER 9

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Arbitration family law A new scheme, supported by CIArb, is training family law specialists to use arbitration in financial disputes between family members. So what are the advantages – and the challenges – of this innovative approach?

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A new path ahead

By Rima Evans Illustration: Phil Hackett

While the use of arbitration continues to broaden its scope and influence in areas that go far beyond the commercial sphere (in sport, for example), one field which has been largely untouched is family law.

Disputes in this challenging area have mainly, under English law, been resolved either through the courts or through mediation or negotiation since the 1990s – a time when although mediation was generally on the rise, there was also greater appreciation of the personal and holistic benefits it offered to the specific needs of families and children, particularly when compared with litigation.

One stumbling block to using arbitration for family law in England has been the fact that while there is nothing on the statute books or in common law that specifically prevents its use, there is no specific provision recognising it. The fact that the family courts have a highly discretionary element in outcomes had previously been perceived as making arbitration either impossible or difficult to introduce.

Having said that, binding family arbitration has not taken off in a huge way in other common law

To date only Australia, Canada and Scotland have statutorybased family arbitration jurisdictions. To date only three countries – Australia, Canada and Scotland (a hybrid common law/civil law jurisdiction) – have statutory-based family arbitration. (Scotland is a recent addition under its Arbitration Act.) Nevertheless, a few pioneering family lawyers in England have been convinced for a number of years that arbitration could have a valuable role to play in their field. While mediation is largely successful, there has been a growing dissatisfaction with the fact it is not suitable for those ‘hard to settle’ cases which require a directive and binding approach but which it would be preferable to keep out of court.

This is particularly the case for financial disputes, according to the research committee of the Centre for Child and Family Law Reform.

In these instances, parties have to resort to the less-than-ideal option of court, which is costly and protracted and therefore stressful for the families and children involved.

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arbitration family law being launched this month which will, for the first time under English law, offer family arbitration as an option for resolving family disputes involving money or property claims.

The Family Arbitration Scheme is being implemented by a newly formed group called the Institute of Family Law Arbitrators (IFLA) which has brought together a number of organisations including CIArb, Resolution (formerly the Solicitors Family Law Association), the Centre for Child and Family Law Reform and the Family Law Bar Association (FLBA).

It is being hailed as a hugely innovative opportunity in the family law arena, with high hopes that it will further expand the ADR toolkit to avoid the need to resort to court.

Not only has it received support from the UK’s Ministry of Justice (MoJ), it has also caught the interest of eminent law practitioners including the former Lord Chancellor Lord Falconer, who has agreed to be chairman of IFLA’s board.

The scheme was born out of lengthy discussions, research and campaigning by family lawyers keen to improve the current system. David Hodson MCIArb, an English and Australian family lawyer at The International Family Law Group LLP of Covent Garden, London, has played a principal role in making the scheme a reality. He saw the potential of arbitration in family law as long ago as 2001.

He had heard from a colleague how arbitration was used in the shipping industry and wondered why its principles couldn’t be applied in family law too.

Hodson, who is also a Deputy District Judge of the Principal Registry of the Family Division in London and a mediator, explains: “I got very despondent that we weren’t producing a way forward to help the ‘difficult to settle’ cases. Mediation is brilliant if there is a willingness to make progress, but it struggles with those cases that need to have a resolution of one form or another, that need someone to decide an outcome. But do they need to have that resolution in court with all the elements of the court experience? That is where arbitration in family law seems to me to be crucially valuable. I was also conscious that the court-based system had its disadvantages. Meanwhile, some of the attributes of arbitration when compared with court, such as speed or choice of arbitrator, are hugely beneficial.”

Hodson adds: “When I looked into what was happening in family arbitration in England the answer was absolutely nothing. There was a

general perception that you couldn’t do it and it was a waste of time because there was a belief that nothing could bind the family court. Although I didn’t accept that.”

What Hodson quickly found out was that family arbitration schemes were successfully operating in Canada and Australia – since 1991 and 2001 respectively – which meant that this issue had already gained at least some international momentum and, more usefully, that there already existed a framework for its implementation. (As it happens, the IFLA scheme has borrowed significantly from Australia’s.)

Keen to pursue his idea, Hodson made contact with CIArb to see if it would support the concept of family arbitration, help draw up a set of rules and provide a bespoke training course for family lawyers keen to move into arbitration. There has also been involvement from Resolution, the FLBA and Centre for Child and Family Law Reform, the latter of which had separately been exploring the possibility of such a scheme, having been dissatisfied with the status quo for some years.

As Frances Burton, a family law barrister, mediator and committee member of the Centre

CIArb saw the training scheme as falling squarely within the object of its Royal Charter

for Child and Family Law Reform, says: “Mediation isn’t always suitable because some people want somebody else to take the decision. Also it is not binding, so if parties couldn’t get the deal they want they would have to go to court, which is stressful and expensive.”

CIArb was keen to be involved both to lend its credentials in the training of family arbitrators but also because it saw the project as falling squarely within the object of its Royal Charter, which is to “promote and facilitate worldwide the determination of disputes by arbitration and alternative means of private dispute resolution other than resolution by the court”.

Tony Marks FCIArb, Director of Legal Services at CIArb, says: “We see CIArb’s role in assisting the setting up of the scheme as very much in the public interest. It also broadens CIArb’s usual areas of involvement, which up to now have been mainly in the commercial arena.”

So how does the family arbitration scheme work? What it offers is another option, “another tool in the toolbox”, says Hodson.

A group of 40 family lawyers will have been trained as family arbitrators by 22 February, when the scheme becomes formally operative. Those being trained as family arbitrators are strictly specialists in the field (see box on training). Hodson explains: “They are a very distinctive group of arbitrators in that they are first and foremost family lawyers and second, trained in arbitration.

This is important.”

The scheme covers the following areas: financial disputes arising from divorce; claims on inheritance from a child, spouse and so on; financial claims made in England after a divorce that has taken place abroad; claims for child maintenance between unmarried parents; disputes about ownership of a property between cohabiting couples; and civil partnership financial claims.

The scheme won’t cover disputes directly concerning: the liberty of individuals; the status of individuals or of their relationship; the care or parenting of children; or bankruptcy or insolvency.

It is expected that the process could be used instead of final court hearings. But it could also be used alongside court proceedings or mediation to resolve discrete issues – matters of a narrow point that might require further evidence or expertise to enable a decisive outcome to be reached.

Burton explains: “You might have a complex financial case in which one of the prime arguments is around where the

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Training family arbitrators Family arbitration training will only be open to those who are practising or retired specialists in the family law field and of a certain level of experience and seniority.

Strict criteria have been set down by IFLA for applicants hoping to be trained as a family arbitrator to ensure the scheme is a trusted and successful one. Work will be out of bounds to commercial arbitrators.

David Hodson says: “Everyone on the scheme is an experienced family lawyer. We didn’t want to bus arbitrators into family law but bus family lawyers into arbitration. This is because, in this area, understanding of family dynamics is as important as the process.”

children and the mother are going to live because the father perhaps wants them to live in a certain culture. One way of handling it might be to have mediation to resolve the child-related aspects but then use arbitration to resolve the detail of the financial matters.”

The advantages of this process are considerable. Marks says: “The benefits are similar to those for commercial arbitration. This will enable parties to resolve financial disputes more quickly, cheaply and in a more flexible and less formal way. It is less acrimonious than going to court.”

However, Hodson adds that one of the most crucial selling points of arbitration in this area is the ability to select a judge. “If you have a discrete problem, arbitration will allow parties to go to a judge who is well known for their experience and expertise in a particular area.

Frankly, there will always be judges you would prefer not to have and/or that you favour more. This discussion goes on day by day, but arbitration gives you more control.”

Other advantages of family arbitration include privacy and confidentiality; an arbitrator being involved continuously throughout a hearing rather than having several different judges involved; the procedure being cheaper than court; and parties being able to choose their own timetable, location and the manner of procedure.

So far the bespoke training course, which has been put together and provided by CIArb, has attracted retired High Court and Court of Appeal judges as well as family lawyers.

The training course is delivered over a weekend, with a combination of private study and face-to-face tutorials. Candidates will be fully trained in relevant aspects of the law of arbitration, practice and procedure, drafting and deciding, award writing and in family arbitration. Successful candidates will be awarded Membership of CIArb. For more information contact Angie Papa.

Email apapa@ciarb.org

Hodson particularly stresses the importance of the flexibility around procedure: “We have standardised rules – Family Procedure Rules 2010 – which are very good and strong on case management and have a particular form of disclosure that is needed. But there may well be cases where parties would rather short circuit this.”

The scheme could also help avoid lengthy delays to a resolution. “A case might be going well but then have a discrete issue that needs to be settled in court, which creates a log jam. Going to an arbitrator will avoid the long and costly wait for a court hearing,” Hodson explains.

Overall the scheme is expected to save court resources and reduce pressure on the already stretched family courts – a benefit very much welcomed by the MoJ, which is making moves to cut the cost of the UK court system.

One area of contention under the new scheme, however, is how binding family arbitration fits in with the English family law statutes under which family court judges have the ultimate discretion to decide on all family law matters.

The concern is that an arbitrator’s decision may not be binding and could

be overturned by a judge if one party disagreed with the decision.

However, Burton dismisses this as a potential problem. “Any agreement made between parties in arbitration, mediation or whatever, can be the subject of a consent order which can be approved by the Family Division of the High Court under section 33(A) of the Matrimonial Causes Act 1973,” she says.

“If a party backed out and said they didn’t accept the decision of the arbitrator it wouldn’t be valid since they would have already agreed to the decision of the arbitrator.”

Furthermore, it is unusual for the Family Division of the High Court to upset an agreement made between the parties without a compelling reason, such as that it made improper provision for children or there was bias or bullying in the process, Burton adds.

“This shouldn’t happen since all the arbitrators are undergoing rigorous training

by CIArb, which is a powerful mark of quality assurance. Unless the person is of a certain seniority and level of experience they won’t even be admitted to the training course, so we have got some very good people on this scheme. This will ensure awards are appropriate and correct in the first place.”

There are hopes that eventually family arbitration will expand beyond financial and property disputes, but for now there is much expectation around what the new scheme will offer.

“It is a very exciting move for arbitration,” says Hodson. “There is no doubt we will be doing things differently to the way it’s done in commercial arbitration.”

Burton adds: “It is going to make a lot of difference and has huge potential; it really is very important because it is so innovative.”

THERESOLVER

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HOW TO…

…conduct a Med-Arb

By Chris Gilbert Illustration: Cameron Law “Med-Arb will test everything you know about mediation and arbitration. You could end up in the law reports for all the wrong reasons”

I

It is an attractive idea that an experienced dispute resolver may conduct a mediation and then, if necessary, arbitrate the dispute. It may turn out that the parties eschew a horse deal and want (or need) an independent determination. The mediator will be familiar with the issues and will have earned the parties’ trust. But there are some pitfalls to avoid.

1 ⁄

Consider playing it safe

The CIArb standard Med-Arb clause provides that the mediator should not be the same person as the arbitrator (see www.ciarb.org/ dispute-resolution/disputeresolution-contract-clauses).

2 ⁄

Strive for a mediated settlement

The dynamics of the mediation may be altered if the parties know you may become their arbitrator. If there has to be an arbitration, that is when alternative dispute resolution may backfire publicly in court proceedings challenging the award.

Chris Gilbert FCIArb is a Chartered Arbitrator and Consultant Solicitor with Excello Law

3 ⁄

Beware unwitting bias

Anyone seeking to mediate and then deliver an impartial

adjudication or arbitration should read Glencot Development and Design Co Ltd v Ben Barrett & Son (Contractors) Ltd. Judge Lloyd said: “Mr T went to and fro between the parties. We do not know what he heard or learned… nor given that the content was ‘without prejudice’ and confidential ought there to be any enquiry as to what happened.

Those private discussions could have conveyed material or impressions which subsequently influenced his decision… Of much more consequence… is the fact that the discussions… were heated so that it would have been only understandable if some view had been formed about some people or a party. In the adjudication Mr T was asked to decide certain points about which there was no documentary evidence… These are areas where unconscious or insidious bias may well be present.”

4 ⁄

Get informed consent

The parties must, of course, consent to a mediation agreement and an arbitration agreement, and preferably a Med-Arb agreement.

Even so, as Judge Lloyd said in Glencot, “an agreement in advance, even if a formal written agreement, may not be effective in

depriving a party of its right to question a later decision on the grounds of apparent or actual bias”. But the judge was dealing with enforcement of an adjudicator’s decision. In an arbitration, a party may lose its right to object under Section 73 of the (English) Arbitration Act.

5 ⁄

Take care to hear both sides

6 ⁄

Reserve the right to resign

7 ⁄

Write the award with extra care

Allegations and impressions picked up from the mediation must be identified as such and put by one side to the other in the arbitration, or else given no weight.

The immunity of an arbitrator under Section 29 of the Arbitration Act does not affect any liability incurred by reason of resigning.

So an arbitrator may wish to use Section 25 to reserve a right to resign and still be entitled to a fee.

The award should include recitals mentioning the mediation, the parties’ consent to Med-Arb and the steps taken to ensure a fair arbitration.

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CIArb has welcomed Waj Khan as Presidential Appointments and CDP Manager. Angie Papa (pictured left), currently Education and Training Manager, will become permanent in May in the role of Business Development Manager.

Sale of IDRS ‘will boost relationship with CEDR’ CIArb has sold IDRS, one of the UK’s leading dispute resolution service providers, to the Centre for Effective Dispute Resolution (CEDR).

The sale took place in November last year.

IDRS administers a range of schemes for the resolution of consumer complaints (including the CISAS scheme for communications disputes and the POSTRS scheme for postal consumers), and handles some business-tobusiness schemes.

The move sees IDRS added as a going concern to CEDR’s commercial arm, enabling CIArb to concentrate on its core business as a Chartered professional and membership body.

CIArb and CEDR envisage the sale as the beginning of a closer and mutually beneficial relationship between both organisations, and have agreed to cooperate in the area of research on dispute resolution techniques. Together they will develop this relationship for the benefit of the mediation community.

CIArb’s Director General Michael Forbes Smith MCIArb (pictured left) said: “I am convinced that this move will prove beneficial to both organisations and to our many satisfied clients who have been served so well by IDRS. It allow us to concentrate on our core mission to promote and facilitate alternative dispute resolution throughout the world and we look forward to working with CEDR to create further opportunities for our research and thought leadership roles.”

Karl Mackie FCIArb, Chief Executive of CEDR, said: “The acquisition of IDRS complements CEDR Solve’s services, traditionally in high-profile commercial business disputes, which have also recently expanded into consumer and public body adjudication services. We value the collaborative relationship which has developed between us over these discussions and are enthusiastic about taking this forward in the future.”

ONLINE POLL

New members of Board of Trustees announced CIArb has announced new elected/ appointed members to its Board of Trustees for the period 1 November 2011 to 31 December 2012.

Those newly elected/appointed are: Americas Region

Peter Michaelson FCIArb (North America) Europe Region

Rowena Mulcahy FCIArb (Ireland) (pictured right) UK

David Brynmor-Thomas MCIArb Wendy Miles FCIArb Greg Reid FCIArb The continuing trustees are: Africa Region

Christopher Ojo FCIArb (Nigeria) Australasia Region

Malcolm Holmes QC FCIArb (Australia) East Asia Region

Colin Wall FCIArb (Hong Kong) Middle East/ Indian sub-continent

Dr Nayla Comair-Obeid FCIArb: Deputy Chair (Lebanon)

UK

Bruce Kettle MCIArb Michael Stephens FCIArb: Honorary Treasurer John Wright FCIArb: Chair Ex officio

President: Jeffrey Elkinson FCIArb (Bermuda) Chair of the Board of Management: Charles Brown FCIArb (UK)

Brian Green: a tribute Brian Green, past Chair and Treasurer of CIArb, passed away on 26 September 2011, writes John B Wilding FCIArb. Although born in 1927 in London, Brian was one of a group of senior construction arbitrators based in the North.

During a successful surveying career, Brian had identified a need for someone to help resolve problems in large construction projects. So after retiring from surveying aged 60, Brian trained as an arbitrator and was appointed Chair of CIArb in 1999.

Prior to being Chair he was Treasurer, during which time he laid firm financial foundations for the future. He will be missed.

Do you agree that mandatory mediation is effective?

47% NO

ONLINE Be part of the debate at → www.ciarb.org → www.linkedin.com

CIArb NEWS

53% YES Source: www.ciarb.org

Don’t miss our exclusive interview CIArb’s new President, Jeffrey Elkinson FCIArb, gives his first interview in the February 2012 edition of CIArb’s e-solver. Find out what he thinks the challenges are in the year ahead and what he hopes to achieve during his presidency.

Read the full interview here: → www.ciarb.org/news February 2012 | THERESOLVER 15

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CIArb NEWS BRANCH ROUND-UP Ireland

Dublin hosts YMG The inaugural CIArb Young Member Group (YMG) conference was hosted in Dublin by the Irish Branch in November and attended by more than 100 members from 21 different jurisdictions. The conference opened with a reception in Dublin’s City Hall, attended by the Lord Mayor Andrew Montague who presented Fellowship certificates and Mediation certificates to members.

The conference was opened by Justice Peter Kelly MCIArb, the nominated Arbitration Judge in the Irish High Court, and the keynote

talk was given by the then CIArb President Doug Jones AM FCIArb. Speakers looked at topics including, “Best Practice: What Can Arbitral Seats Learn from One Another?” and “International Arbitration: Emerging Trends”.

The conference concluded with a gala dinner at the Westbury Hotel.

Doug Jones rounded off the weekend with a lecture on “Mediation in Australia”.

The event was a great success.

The venue for the next two YMG conferences will be announced soon.

North America

activities for the past 12 months and outlined the forthcoming programme of events. He thanked the committee members for all their tireless work.

The guest speaker was Rosemary Jackson QC of Keating Chambers who amused the audience with facts from a research paper entitled “Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes”.

New chapters The North American Branch has welcomed two new chapters.

The Montreal/Ottowa Chapter is led by Jacques S Darche FCIArb as Interim Chair, assisted by Eric Ouimet FCIArb in Montreal and Mandy Moore FCIArb in Ottawa.

The Rocky Mountain Chapter is led by Harry L Arkin FCIArb as Chair Emeritus, David B Wilson MCIArb as Chair, Stephen E Smith FCIArb as Vice Chair and James E Nelson ACIArb as Secretary.

In other chapter news, members of the Chicago Chapter will be serving as arbitrators/ judges for the Vis Mini-Moot on 18 February at Loyola University Law School. The Loyola Mini-Moot is sponsored by the NAB. NORTH WEST, UK

Annual dinner The North West Branch held its annual dinner on 3 November 2011. The evening was a very successful event with more than 80 people in attendance.

Branch Chair Ian Williams FCIArb gave the opening address, reported on the committee’s

UAE

Abu Dhabi event The United Arab Emirates Branch held its inaugural seminar in Abu Dhabi on 26 October 2011. The event was attended by more than 40 people, including the then CIArb President Doug Jones, who gave a talk on “Hot Issues in International Commercial Arbitration”.

Adrian Cole FCIArb, instrumental in setting up the event, welcomed CIArb members including Branch Vice Chairs Gordon Tregaskis FCIArb and Michael Tonkin FCIArb. He announced that the event was to gather interest in setting up an Abu Dhabi sub-committee to hold further events and training, and thereafter establishing an Abu Dhabi Chapter/Branch. Those

Kenya

A CIArb Adjudication Course was held at the Nairobi Club in October, 2011. Pictured are the participants and course director, engineer Peter Scott MCIArb (centre).

interested in joining the subcommittee should contact Adrian Cole. Email adrian.cole@simmons-

simmons.com

Scotland, UK

Ministerial visit The Northern Chapter Chair Derek Auchie MCIArb and other chapter representatives met with Roseanna Cunningham, Minister for Community Safety and Legal Affairs, on 27 September 2011 in Aberdeen. They were joined by Andrew MacKenzie, Chief Executive of the new Scottish Arbitration Centre (SAC).

The new opportunities presented by the Arbitration (Scotland) Act 2010 and SAC were discussed. These included an emphasis on confidentiality, the distinctive and mature Scottish legal system, and lower costs of arbitration which can be achieved in Scotland.

The minister offered to support the chapter and SAC in promoting arbitration rather than litigation to resolve disputes, and to do so in Scotland.

Thanks are due to Paull & Williamsons for providing the venue.

London, UK

Seminar series On 1 December 2011, the London Branch held the fourth event in what is becoming a series of biannual joint seminars with the London Maritime Arbitrators Association (LMAA) on “Current Issues in Maritime Arbitration”.

The event was hosted by Ince & Co LLP. The guest speakers included The Rt Hon Lord Justice Tomlinson.

The branch held its annual dinner at the Worshipful Company of Tallow Chandlers’ Hall on 17 November 2011. The principal guest and speaker was His Honour Sir Gavyn Arthur, the Lord Mayor of London in 2002/03.

And in October two seminars took place. “Arbitration of Disputes in UK Construction Projects” was hosted by Davis Langdon and included The Hon Mr Justice Akenhead as a guest speaker.

“Arbitration and ADR in the Insurance Sector” was hosted by Quadrant Chambers. Guest speakers included The Hon Mr Justice Clarke.

For longer versions of branch news

→ www.ciarb.org/branch-news

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in practiCe Follow CIArb and take part in the debate at: twitter.com/Ciarb facebook.com

MY TOUGHEST DISPUTE

linkedin.com www.ciarb.org/forum

BEST OF THE

UK

ADR Debate

John Redmond

Question posted on CIARb’s LinkedIn Group: Do you agree that mandatory mediation is effective?

An unusually comprehensive parcel of evidence documenting a holiday from hell led to a memorable brief encounter

Member posted: The question is pretty limited in at least two

areas. “Mandatory” – what does it mean? If mediation is ordered/ recommended by a judge in a pending litigation, should that be assumed to be a mandatory mediation? In my opinion in practice it is mandatory if the denial to participate has consequences in relation to costs. But formally it is not. “Effective” – does that only mean the strict outcome of the dispute (for instance, one party paying the amount of money to the other party) or does it also include the outcome for the parties in a broader sense, i.e. the parties’ satisfaction with the process, the result, and their future relationship? In the narrow understanding my answer to the question would be yes, and in the broader sense no – not at all!

Member posted: Yes, I do agree, but it’s become a hybrid of

mediation and arbitration.

Member posted: Practically, litigation generally starts when the

mediation either fails or is expected to be ineffective by the parties.

In such circumstances ordering mandatory mediation by court may be unsuccessful in the majority of cases, resulting in a waste of time and money. Theoretically, mediation helps if held with the free consent of the parties. Imposing mediation upon unwilling party/ parties may not be fruitful.

Member posted: I used to be very anti forcing parties to mediate.

The prospect of having difficult conversations is pretty daunting for anyone involved in deep-seated conflict. The tendency is to either avoid – cut and run – or seek a determination of rights and obligations. Of course in more than 90 per cent of situations we end up with some sort of negotiated solution. If we accept that then forcing people to talk must be positive and we shouldn’t be put off by their otherwise unwillingness to talk. Mandatory mediation has worked very well in the UK for small claims so why can’t we use it in other appropriate circumstances and at the appropriate time?

The proviso being that mediation isn’t the panacea for everything and can be tried too early as well as too late. So on balance I give a guarded “yes” to mandatory mediation – the question being who mandates parties to mediate and when. That is the difficult bit!

Member posted: Mandatory mediation may be effective according to

my experience. Also crucial is what are the consequences of party non-compliance with ordered mediation? I think that impact on costs is a reasonable consequence of such a non-compliance.

Are there any burning issues in ADR that you would like to start a discussion about? If so, visit CIArb’s LinkedIn page and start your own debate today.

You can also see other discussions and connect with colleagues – search for Chartered Institute of Arbitrators.

17 THERESOLVER | November 2010

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FCIArb, Chartered Arbitrator, an adjudicator and mediator

These days papers sent to section. It looked suspiciously arbitrators are usually dispatched like a hole caused by falling by email. But until quite recently cigarette ash. I turned to the arbitrators called upon to deal thongs and tried to examine with holiday disputes from ABTA them surreptitiously without the Travel Association (formerly attracting attention from those the Association of British Travel around me in the office. That Agents) would receive papers was difficult as thongs are not through the post in unmarked often on display here. I envelopes. As it happens, that was wondered whether I should refer quite appropriate in this case. to a technical expert. I decided The package had arrived while to rely on my own experience.

I was on holiday myself. When I My team of construction returned to the office it was sitting lawyers were quick to offer advice. on my desk although it looked as if One helpfully suggested that the it had been opened while I was thongs may have started out as away and then resealed. Some of bloomers but had been nibbled my colleagues down by the were hovering voracious ants near it and their current A colleague suggested to seemed to be minimalist the thongs may have taking a keen condition. started out as interest. Did Another bloomers but had they know been nibbled down by colleague, a something that lady, was the voracious ants I didn’t? disgusted I opened the – fancy sending package and thongs to an extracted the normal bundle of arbitrator, and thereby admitting papers, complete with a holiday that you were a size 14. brochure, rather unhelpful There were other aspects of the photographs and a sheaf of claim to be considered. The disgruntled letters with sunbeds around the hotel pool platitudinous replies. But there were dual purpose. During the was something else in the day they were occupied either by envelope. I pulled out a little sun worshippers or towels. After black dress and then two black dark they had a completely thongs – ladies’ underwear! different function. Cleanliness The unhappy traveller was was generally a problem and the complaining that her hotel food was inedible – perhaps even bedroom in Cyprus had been for the ants. infested by ants, which had The claimant succeeded, but crawled through her wardrobe not with regard to the nylonand eaten her clothes. eating insects. After all, if I had I examined the dress. It was allowed that claim she might have made of nylon and had a small made a habit of sending me her hole in the middle of the upper underwear.

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What’s on

ONLINE

Further information on all of CIArb’s international 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

CIArb professional training diary March – September 2012 Courses held at 12 Bloomsbury Square, London (unless otherwise indicated)

2012 March NEW 1st ALTERNATIVE DISPUTE RESOLUTION Introduction to ADR Provides a complete explanation of the main categories of alternative dispute resolution.

Duration: 1 day Fee: £350 + VAT 6th arbitration Introduction to Domestic Arbitration Provides an understanding of the general principles of arbitration.

Duration: 1 day Fee: £400 + VAT 6th International Arbitration Introduction to International Arbitration Provides an understanding of the principles of international arbitration.

Duration: 1 day Fee: £400 + VAT 7th-8th international Arbitration Accelerated Route to Fellowship – International Arbitration To provide a fast-track route to Fellowship through the international arbitration pathway.

Duration: 2 days Fee: £1550 + VAT 12th Arbitration & Adjudication Module 1 Law of Obligations and Civil Evidence Provides a robust understanding and appreciation of the key, relevant aspects of the legal system.

Duration: 7 months Fee: £1100 + VAT 12th Mediation Module 3 Mediation – Law for Mediators Provides sufficient knowledge of relevant legal systems and mediator-related laws to enable comprehension of the context of the dispute.

Duration: 7 months Fee: £1100 + VAT 12th–14th Mediation Workplace Mediation Conversion Course Provides an understanding of the theory of mediation in the workplace.

Duration: 3 days Fee: £1395 +VAT 13th Adjudication Introduction to Adjudication Provides an understanding of the

general principles of adjudication.

Duration: 1 day Fee: £400 + VAT 13th Mediation Introduction to Mediation Provides an understanding of the general principles of mediation.

Duration: 1 day Fee: £400 + VAT 14th–15th arbitration Accelerated Route to Membership – Domestic Arbitration To provide a fast-track route to Membership through the domestic arbitration pathway.

Duration: 2 days Fee: £1100 + VAT 15th International Arbitration Module 2 International Arbitration – Law of Arbitration Provides candidates with a detailed knowledge and understanding of the law of arbitration.

Duration: 5 months Fee: £1100 + VAT 19th–24th (22nd – Study Day) Mediation Module 1 Mediation – Commercial Mediation Training Provides the skills and knowledge necessary to become a CIArb Accredited Mediator, and/or represent clients in mediation.

Duration: 5 days Fee: £2595 + VAT 26th Adjudication Module 4 Adjudication – Writing a Decision Provides sufficient knowledge of and practice in all the requirements for the writing of a final, reasoned and enforceable adjudication decision.

Duration: 4 months Fee: £1100 + VAT 27th Mediation Introduction to Workplace Mediation Provides an understanding of the general principles of workplace mediation Duration: 1 day Fee: £499 + VAT 27th–28th (27th – Refresher Day) Mediation Module 2 Commercial Mediation Assessment A chance to revise mediation techniques prior to assessment.

Duration: 1 day Fee: £450 + VAT 28th Mediation Module 2 Mediation – Assessment An assessment programme aimed at candidates who wish to become a CIArb Member and CIArb Accredited Mediator, to represent clients in mediation.

KEY: ■ Arbitration ■ ADJUDICATION

■ MEDIATION ■ international Arbitration

■ Arbitration ■ COMMERCIAL DISPUTE RESOLUTION

& ADJUDICATION ■ GENERAL ALTERNATIVE

DISPUTE RESOLUTION

Duration: 2 days Fee: £1500 + VAT 29th international arbitration Module 4 International Arbitration – Award Writing Provides sufficient knowledge of and practice in the writing of a final, reasoned and enforceable arbitration award in a commercial dispute.

Duration: 4 months Fee: £1100 + VAT 30th arbitration Module 3 Arbitration – Practice, Procedure, Drafting & Deciding – Domestic & International Arbitration Provides detailed knowledge of and guided practice in the main procedural elements involved in a commercial arbitration.

Duration: 6 months Fee: £1550 + VAT MAY 21st–23rd & 30th–31st Mediation Module 1 Mediation – Workplace Mediation Training Aimed at candidates who wish to become a CIArb Accredited Workplace Mediator.

Duration: 5 days Fee: £2295 + VAT june NEW 1st ALTERNATIVE DISPUTE RESOLUTION Introduction to ADR Provides a complete explanation of the main categories of alternative dispute resolution.

Duration: 1 day Fee: £350 + VAT 11th mediation Module 2 Mediation – Workplace Mediation Assessment To assess and consolidate the knowledge gained in Module 1 – Mediation, and enable candidates to qualify as a CIArb Accredited Mediator.

Duration: 1 day Fee: £1500 + VAT 12th International Arbitration Introduction to International Arbitration Provides an understanding of the principles of international arbitration.

Duration: 1 day Fee: £400 + VAT 13th–14th arbitration Accelerated Route to Membership – Domestic Arbitration To provide a fast-track route to Membership through the domestic arbitration pathway.

Duration: 2 days Fee: £1100 + VAT

18th-19th International Arbitration Accelerated Route to Fellowship – International Arbitration To provide a fast-track route to Fellowship through the international arbitration pathway.

Duration: 2 days Fee: £1550 + VAT 19th arbitration Module 2 Domestic Arbitration – Law of Arbitration Provides candidates with a detailed knowledge and understanding of the law of arbitration.

Duration: 5 months Fee: £1100 + VAT 21st Adjudication Module 2 Adjudication – Law of Adjudication Provides candidates with a detailed knowledge and understanding of the legal and procedural principles involved in statutory adjudication.

Duration: 6 months Fee: £1100 + VAT 25th–26th Adjudication Accelerated Route to Fellowship – Adjudication Provides a fast-track route to Fellowship through the adjudication pathway.

Duration: 2 days Fees: £1550 + VAT 26th Adjudication Module 3 Adjudication – Practice, Procedure, Drafting & Deciding Provides detailed knowledge of the main procedural elements of statutory and contractual adjudication.

Duration: 6 months Fee: £1550 + VAT 28th arbitration Module 4 Domestic Arbitration – Award Writing Provides sufficient knowledge of and practice in all the requirements for the writing of a final, reasoned and enforceable arbitration award in a commercial dispute.

Duration: 4 months Fee: £1100 + VAT SEPTEMBER NEW 26th ALTERNATIVE DISPUTE RESOLUTION Introduction to ADR Provides a complete explanation of the main categories of alternative dispute resolution.

Duration: 1 day Fee: £350 + VAT Courses are also run internationally. More information → www.ciarb.org/course-finder

18 THERESOLVER | February 2012

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GUIDING YOU THROUGH ALTERNATIVE DISPUTE RESOLUTION ADR: PRINCIPLES AND PRACTICE Henry Brown & Arthur Marriott QC 3rd Edition ȕ Covers the theory, principles and practice of ADR with a strong emphasis on mediation ȕ Addresses all main fields of dispute resolution including civil-commercial, family and divorce, employment, environmental and restorative justice ȕ Explores and integrates models of practice, examining strategies and providing precedents ȕ New chapters include an introduction to dispute resolution psychology and provide insight into strategies for working with high conflict parties

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