This document provides an overview of mediation as an alternative dispute resolution process. It defines mediation and compares it to other forms of ADR such as arbitration. The document discusses the benefits and limitations of mediation, as well as best practices for drafting mediation provisions, preparing for a mediation session, and achieving a successful outcome. It also summarizes California and federal law regarding the confidentiality and privilege of mediation communications.
Intellectual Property (IP) and Alternative Dispute Resolution (ADR): Using M...Erica Bristol
This PowerPoint discusses the use of mediation-pre-litigation and during litigation-to resolve intellectual property disputes, including a discussion of the difference between California and federal mediation confidentiality and privilege, and considerations when drafting mediation clauses in licenses and other contracts.
This document discusses arbitration agreements. It defines an arbitration agreement as an agreement between parties to submit present or future disputes to arbitration. There are two basic types: clauses in contracts and separate submission agreements for disputes that have already arisen. The document outlines requirements for valid arbitration agreements under the Model Law and New York Convention. It also discusses the law applicable to arbitration agreements, the power of courts to refer parties to arbitration when an agreement exists, interim measures courts can order, and grounds for terminating an arbitration agreement.
Arbitration as a method of resolving disputes Ishaan Savla
1) Arbitration is a formal process where a private third party arbitrator makes a binding decision to resolve disputes instead of going through litigation.
2) It has been used internationally since the late 19th century to resolve conflicts between countries in a private manner.
3) Arbitration results in a final ruling, unlike mediation which facilitates negotiations, and the rulings can be enforced globally through treaties like the 1958 New York Convention.
Alternative dispute resolution (ADR) refers to ways of resolving disputes outside of litigation, such as negotiation, mediation, arbitration, and collaborative processes. ADR methods are commonly used in family law cases as they often result in more satisfied clients and allow the parties to voluntarily reach mutually agreeable settlements. Key ADR approaches discussed in the document include negotiation between the parties or their lawyers, mediation which uses a neutral third party to facilitate discussion, and arbitration where a third party makes a binding decision.
Law Senate Law Firm provide arbitration services in india in various sectors like construction and infrastructure, supply contracts, information technology and oil and gas refineries etc.
The document summarizes a group presentation on business law. It includes:
- Names and student IDs of three group members presenting on the Contract Act 1872.
- Date and class details. They will present to Miss Asma Kiran.
- An overview of key topics in contract law discussed in the presentation, including essential elements of a valid contract, types of contracts, offer and acceptance, consideration, free consent, termination of contracts, and remedies for breach.
This document discusses various dispute resolution methods like arbitration, conciliation, mediation, and negotiation. It provides details on arbitration and conciliation. Arbitration is described as a private judicial determination of a dispute by an independent third party, whose decision is final and binding. Conciliation is defined as the adjustment and settlement of a dispute in a friendly manner through a non-binding third party process. The key principles of conciliation discussed are independence, fairness, confidentiality, and cooperation of parties. The advantages of conciliation include party autonomy, expertise of the decision maker, and efficiency. The conciliation procedure involves parties presenting evidence and arguments to the conciliator. The main objectives of the Indian Arbitration and Conc
Construction industry disputes are frequently arbitrated rather than litigated.This presents general information and common considerations when considering the use and application of arbitration to resolve construction and design deficiency claims. From a Hawaii business focus.
Intellectual Property (IP) and Alternative Dispute Resolution (ADR): Using M...Erica Bristol
This PowerPoint discusses the use of mediation-pre-litigation and during litigation-to resolve intellectual property disputes, including a discussion of the difference between California and federal mediation confidentiality and privilege, and considerations when drafting mediation clauses in licenses and other contracts.
This document discusses arbitration agreements. It defines an arbitration agreement as an agreement between parties to submit present or future disputes to arbitration. There are two basic types: clauses in contracts and separate submission agreements for disputes that have already arisen. The document outlines requirements for valid arbitration agreements under the Model Law and New York Convention. It also discusses the law applicable to arbitration agreements, the power of courts to refer parties to arbitration when an agreement exists, interim measures courts can order, and grounds for terminating an arbitration agreement.
Arbitration as a method of resolving disputes Ishaan Savla
1) Arbitration is a formal process where a private third party arbitrator makes a binding decision to resolve disputes instead of going through litigation.
2) It has been used internationally since the late 19th century to resolve conflicts between countries in a private manner.
3) Arbitration results in a final ruling, unlike mediation which facilitates negotiations, and the rulings can be enforced globally through treaties like the 1958 New York Convention.
Alternative dispute resolution (ADR) refers to ways of resolving disputes outside of litigation, such as negotiation, mediation, arbitration, and collaborative processes. ADR methods are commonly used in family law cases as they often result in more satisfied clients and allow the parties to voluntarily reach mutually agreeable settlements. Key ADR approaches discussed in the document include negotiation between the parties or their lawyers, mediation which uses a neutral third party to facilitate discussion, and arbitration where a third party makes a binding decision.
Law Senate Law Firm provide arbitration services in india in various sectors like construction and infrastructure, supply contracts, information technology and oil and gas refineries etc.
The document summarizes a group presentation on business law. It includes:
- Names and student IDs of three group members presenting on the Contract Act 1872.
- Date and class details. They will present to Miss Asma Kiran.
- An overview of key topics in contract law discussed in the presentation, including essential elements of a valid contract, types of contracts, offer and acceptance, consideration, free consent, termination of contracts, and remedies for breach.
This document discusses various dispute resolution methods like arbitration, conciliation, mediation, and negotiation. It provides details on arbitration and conciliation. Arbitration is described as a private judicial determination of a dispute by an independent third party, whose decision is final and binding. Conciliation is defined as the adjustment and settlement of a dispute in a friendly manner through a non-binding third party process. The key principles of conciliation discussed are independence, fairness, confidentiality, and cooperation of parties. The advantages of conciliation include party autonomy, expertise of the decision maker, and efficiency. The conciliation procedure involves parties presenting evidence and arguments to the conciliator. The main objectives of the Indian Arbitration and Conc
Construction industry disputes are frequently arbitrated rather than litigated.This presents general information and common considerations when considering the use and application of arbitration to resolve construction and design deficiency claims. From a Hawaii business focus.
This document summarizes key aspects of arbitration based on a presentation by Dr. Deepa Pravin Patil. It defines arbitration as a dispute resolution process where impartial adjudicators chosen by the parties make a final and binding decision. It notes some fundamental features of arbitration include being an alternative to courts, allowing parties to control the process, and having enforceable awards. The document discusses the Arbitration and Conciliation Act of 1996 in India and types of arbitration like institutional, ad hoc, and international. It provides an overview of topics like arbitration agreements, composition of tribunals, the tribunal's jurisdiction, conduct of proceedings, making awards, termination of proceedings, and challenging awards.
CPD Seminar: Ethics, Professional Skills and Practice Management for LawyersMaurice Blackburn Lawyers
Maurice Blackburn's Employment & Industrial Law Section delivered their annual seminar of which lawyers can gain CPD points for three areas: Ethics, Professional Skills and Practice Management. We were delighted to be joined by Melinda Zerner, Barrister; Rohan Tate, Lawyer; and Lauren Marr, Librarian.
This chapter discusses arbitration as an alternative to litigation for resolving reinsurance disputes. It notes that arbitration has a long history and is now commonly used in the reinsurance industry. The chapter reviews some key advantages and disadvantages of arbitration compared to litigation, including reduced formality, confidentiality, discovery flexibility, and appeal limitations. It also examines relevant US and international laws governing arbitration and typical processes for initiating, conducting, and enforcing arbitration of reinsurance claims.
This document provides an overview of arbitration and summarizes key sections from a report on arbitration. It begins with background on the purpose and objectives of the report, which is to understand arbitration and how it settles complex disputes. It then reviews definitions of arbitration, its importance, objectives, principles, types, and process. Specifically, arbitration is defined as the submission of a dispute to an impartial arbitrator for a decision. It is an important alternative dispute resolution mechanism because it provides flexibility, neutrality, and binding final decisions in a confidential process. The objectives of arbitration are to cover domestic and international disputes and ensure fair resolution. The characteristics include being voluntary, private, quicker and less expensive than litigation. The types discussed are voluntary, compuls
- The document discusses the key aspects of contract law including the definition of a contract, essential elements for a valid contract such as offer, acceptance, consideration, capacity and legality.
- It also covers types of contracts such as express, implied, unilateral, bilateral contracts and modes of their discharge such as performance, agreement, impossibility.
- Remedies for breach of contract including damages, rescission, injunction and specific performance are also summarized. The document is presented by Dr. Mukesh Agarwal, an author of several books on legal topics.
Nvc Fund Holding Trust Transaction Platform 2152019FrankEkejija1
NVC EDI Commercial Transaction Platform was established in 2018 as a Special Purpose Entity with NVC Fund LLC to specialize in electronic data interchange and credit insurance for marketable risks. The platform provides financing solutions like loans, guarantees, and insurance to companies and has a target of managing over $5 billion for each of its 452 sector joint venture partners by recapitalizing them. It aims to significantly increase its business and achieve a net profit of 10 billion by the end of 2019.
The document discusses various alternative dispute resolution (ADR) methods for resolving civil legal disputes outside of court. It defines ADR and describes negotiation, mediation, conciliation and arbitration processes. Negotiation involves parties discussing solutions without legal representation, while mediation uses an impartial third party to direct discussion. Conciliation is similar but the third party can make suggestions, and arbitration involves a third party making a binding decision. The document outlines advantages like time and cost savings compared to litigation, and disadvantages such as non-binding decisions and need for voluntary participation.
This document provides an overview of alternative dispute resolution (ADR) methods. It introduces ADR and defines it as any means of settling disputes without litigation. The main ADR methods discussed are mediation, arbitration, neutral evaluation, negotiation and conciliation. Mediation uses a neutral third party to help parties reach an agreement. Arbitration involves binding decisions by expert arbitrators. Neutral evaluation involves early case presentations to a neutral expert. Negotiation and conciliation allow parties to explore solutions with the help of a third party. Other methods mentioned include expert determination, appointing an independent solicitor, and collaborative law.
Florida mediator Robert A. Cole and civil trial lawyer Rutledge R. Liles will use a series of hypothetical ethical dilemmas arising during the mediation of a "typical" personal injury case to explore what the law says, what guidelines advise and how to apply these standards to practice during mediation. For the fact scenario, please visit http://www.uww-adr.com/?p=6166.
1) ADR methods like mediation and arbitration provide alternatives to litigation that are usually cheaper, faster, and less adversarial. They allow parties more control over outcomes.
2) Common ADR methods include negotiation, mediation, conciliation, arbitration, and tribunals. Mediation involves a neutral third party facilitating compromise, while arbitration involves a third party making a binding decision.
3) Tribunals are bodies that resolve disputes but are not courts, handling issues like immigration, benefits, and employment claims more informally than courts. They aim to be accessible and efficient alternatives.
Mediation is a process of third-party involvement in a dispute. A mediator cannot impose an outcome but rather assists the disputing parties in reaching their own agreement.
Mediation can be used in a wide range of disputes, including labor disputes, public policy disputes, disagreements among nations, family disputes, and neighborhood and community quarrels.
According to research, about 80% of dispute mediations lead to resolution.
This document discusses non-disclosure agreements (NDAs), including what they are, why they are needed, how they protect confidential information, common terms included in NDAs, the legal value of NDAs, steps to take if an NDA is violated, legal formalities of NDAs, how NDAs can be terminated, and how NDAs differ from non-circumvention agreements.
This document discusses various aspects of dispute resolution including alternative dispute resolution (ADR) mechanisms, arbitration, and conciliation. It provides definitions and explanations of key terms like arbitration agreement and different types of arbitration proceedings. The advantages of ADR over litigation are highlighted. Issues related to the jurisdiction and impartiality of arbitrators are also covered. The objectives and relevant sections of the Arbitration and Conciliation Act of 1996 are summarized.
1. Mediation provides parties with control over the outcome of their dispute, allowing them to decide their own futures, unlike litigation where a third party decides.
2. Mediation costs significantly less than litigation, which can involve five or six figure legal fees and lengthy delays before a final decision is reached.
3. Through a skilled neutral mediator, parties have the opportunity to fully explain their positions and explore alternatives for mutual benefit, unlike the constraints of litigation.
This document discusses alternative dispute resolution (ADR). It defines ADR as resolving disputes without a trial through processes like arbitration, mediation, and neutral evaluation. The document outlines the philosophies and goals of ADR, including encouraging settlement, adopting a win-win approach, integrating parties' interests, and complying with social norms. It also discusses the success of ADR in Bangladesh, noting statistics that show high rates of cases being resolved through mediation and ADR mechanisms in family courts and other laws.
Confidentiality In Negotiating Settlement AgreementsVictoria Pynchon
The confidential nature of settlement negotiations and mediations are sometimes a bane and sometimes a boon. Learn how to control your own destiny by understanding California's laws of confidentiality.
Mediation is great option for legal cases. It is a concept which is here to stay. All the litigants can take advantage of the same and all o them can be winner.
This document discusses alternative dispute resolution (ADR) methods. It outlines five main types of ADR: negotiation, mediation, conciliation, arbitration, and collaborative law. Negotiation involves parties discussing to find an agreed solution without being binding. Mediation uses an impartial third party to direct discussion but not suggest outcomes. Conciliation is like mediation but the third party can make suggestions. Arbitration uses a third party to impose a binding decision. Collaborative law involves lawyers collaborating to settle without litigation. Advantages of ADR include being less formal, cheaper and faster than courts. Disadvantages are some disputes not being suitable and decisions not always legally binding.
What to Look out for while choosing Arbitration ahead of Regular Litigation.
Essentials of an Arbitration Agreement.
Arbitration Act | ad hoc |Institutional Arbitration |
There is no general or specific guideline for the mediators regarding the maintenance of equal participation and opportunity for the parties that may create serious problem in case of power imbalance. The mediation provisions at the pre-trial and the appellate stage but mediation mechanism upon conclusion of the trial before the pronouncement of judgment has not been incorporated into the CPC.
The document outlines guidelines for mediation, including that parties work to reach their own agreement with the mediator's assistance rather than having decisions made for them. It specifies that communications should generally be joint but the mediator may meet privately with each party. The document also details confidentiality of the process, exceptions, obligations of parties, payment policies, and signatures required of all parties to agree to the guidelines.
Recorded on November 22, 2012 - This webinar in the Family Law Education for Women (FLEW) series looks at a variety of ways to settle issues about children, property, and support, when a woman ends the relationship with her partner. What are the pros and cons of mediation, arbitration, and court, especially when there is or was abuse in the family? METRAC's Legal Director, Tamar Witelson, discusses the issues with Victoria Starr, a specialist in family law practice, and founder of Starr Family Law. Watch the webinar at:
http://yourlegalrights.on.ca/webinar/Conflict-Court-or-Another-Way-Different-Ways-of-Resolving-a-Family-Dispute
This document summarizes key aspects of arbitration based on a presentation by Dr. Deepa Pravin Patil. It defines arbitration as a dispute resolution process where impartial adjudicators chosen by the parties make a final and binding decision. It notes some fundamental features of arbitration include being an alternative to courts, allowing parties to control the process, and having enforceable awards. The document discusses the Arbitration and Conciliation Act of 1996 in India and types of arbitration like institutional, ad hoc, and international. It provides an overview of topics like arbitration agreements, composition of tribunals, the tribunal's jurisdiction, conduct of proceedings, making awards, termination of proceedings, and challenging awards.
CPD Seminar: Ethics, Professional Skills and Practice Management for LawyersMaurice Blackburn Lawyers
Maurice Blackburn's Employment & Industrial Law Section delivered their annual seminar of which lawyers can gain CPD points for three areas: Ethics, Professional Skills and Practice Management. We were delighted to be joined by Melinda Zerner, Barrister; Rohan Tate, Lawyer; and Lauren Marr, Librarian.
This chapter discusses arbitration as an alternative to litigation for resolving reinsurance disputes. It notes that arbitration has a long history and is now commonly used in the reinsurance industry. The chapter reviews some key advantages and disadvantages of arbitration compared to litigation, including reduced formality, confidentiality, discovery flexibility, and appeal limitations. It also examines relevant US and international laws governing arbitration and typical processes for initiating, conducting, and enforcing arbitration of reinsurance claims.
This document provides an overview of arbitration and summarizes key sections from a report on arbitration. It begins with background on the purpose and objectives of the report, which is to understand arbitration and how it settles complex disputes. It then reviews definitions of arbitration, its importance, objectives, principles, types, and process. Specifically, arbitration is defined as the submission of a dispute to an impartial arbitrator for a decision. It is an important alternative dispute resolution mechanism because it provides flexibility, neutrality, and binding final decisions in a confidential process. The objectives of arbitration are to cover domestic and international disputes and ensure fair resolution. The characteristics include being voluntary, private, quicker and less expensive than litigation. The types discussed are voluntary, compuls
- The document discusses the key aspects of contract law including the definition of a contract, essential elements for a valid contract such as offer, acceptance, consideration, capacity and legality.
- It also covers types of contracts such as express, implied, unilateral, bilateral contracts and modes of their discharge such as performance, agreement, impossibility.
- Remedies for breach of contract including damages, rescission, injunction and specific performance are also summarized. The document is presented by Dr. Mukesh Agarwal, an author of several books on legal topics.
Nvc Fund Holding Trust Transaction Platform 2152019FrankEkejija1
NVC EDI Commercial Transaction Platform was established in 2018 as a Special Purpose Entity with NVC Fund LLC to specialize in electronic data interchange and credit insurance for marketable risks. The platform provides financing solutions like loans, guarantees, and insurance to companies and has a target of managing over $5 billion for each of its 452 sector joint venture partners by recapitalizing them. It aims to significantly increase its business and achieve a net profit of 10 billion by the end of 2019.
The document discusses various alternative dispute resolution (ADR) methods for resolving civil legal disputes outside of court. It defines ADR and describes negotiation, mediation, conciliation and arbitration processes. Negotiation involves parties discussing solutions without legal representation, while mediation uses an impartial third party to direct discussion. Conciliation is similar but the third party can make suggestions, and arbitration involves a third party making a binding decision. The document outlines advantages like time and cost savings compared to litigation, and disadvantages such as non-binding decisions and need for voluntary participation.
This document provides an overview of alternative dispute resolution (ADR) methods. It introduces ADR and defines it as any means of settling disputes without litigation. The main ADR methods discussed are mediation, arbitration, neutral evaluation, negotiation and conciliation. Mediation uses a neutral third party to help parties reach an agreement. Arbitration involves binding decisions by expert arbitrators. Neutral evaluation involves early case presentations to a neutral expert. Negotiation and conciliation allow parties to explore solutions with the help of a third party. Other methods mentioned include expert determination, appointing an independent solicitor, and collaborative law.
Florida mediator Robert A. Cole and civil trial lawyer Rutledge R. Liles will use a series of hypothetical ethical dilemmas arising during the mediation of a "typical" personal injury case to explore what the law says, what guidelines advise and how to apply these standards to practice during mediation. For the fact scenario, please visit http://www.uww-adr.com/?p=6166.
1) ADR methods like mediation and arbitration provide alternatives to litigation that are usually cheaper, faster, and less adversarial. They allow parties more control over outcomes.
2) Common ADR methods include negotiation, mediation, conciliation, arbitration, and tribunals. Mediation involves a neutral third party facilitating compromise, while arbitration involves a third party making a binding decision.
3) Tribunals are bodies that resolve disputes but are not courts, handling issues like immigration, benefits, and employment claims more informally than courts. They aim to be accessible and efficient alternatives.
Mediation is a process of third-party involvement in a dispute. A mediator cannot impose an outcome but rather assists the disputing parties in reaching their own agreement.
Mediation can be used in a wide range of disputes, including labor disputes, public policy disputes, disagreements among nations, family disputes, and neighborhood and community quarrels.
According to research, about 80% of dispute mediations lead to resolution.
This document discusses non-disclosure agreements (NDAs), including what they are, why they are needed, how they protect confidential information, common terms included in NDAs, the legal value of NDAs, steps to take if an NDA is violated, legal formalities of NDAs, how NDAs can be terminated, and how NDAs differ from non-circumvention agreements.
This document discusses various aspects of dispute resolution including alternative dispute resolution (ADR) mechanisms, arbitration, and conciliation. It provides definitions and explanations of key terms like arbitration agreement and different types of arbitration proceedings. The advantages of ADR over litigation are highlighted. Issues related to the jurisdiction and impartiality of arbitrators are also covered. The objectives and relevant sections of the Arbitration and Conciliation Act of 1996 are summarized.
1. Mediation provides parties with control over the outcome of their dispute, allowing them to decide their own futures, unlike litigation where a third party decides.
2. Mediation costs significantly less than litigation, which can involve five or six figure legal fees and lengthy delays before a final decision is reached.
3. Through a skilled neutral mediator, parties have the opportunity to fully explain their positions and explore alternatives for mutual benefit, unlike the constraints of litigation.
This document discusses alternative dispute resolution (ADR). It defines ADR as resolving disputes without a trial through processes like arbitration, mediation, and neutral evaluation. The document outlines the philosophies and goals of ADR, including encouraging settlement, adopting a win-win approach, integrating parties' interests, and complying with social norms. It also discusses the success of ADR in Bangladesh, noting statistics that show high rates of cases being resolved through mediation and ADR mechanisms in family courts and other laws.
Confidentiality In Negotiating Settlement AgreementsVictoria Pynchon
The confidential nature of settlement negotiations and mediations are sometimes a bane and sometimes a boon. Learn how to control your own destiny by understanding California's laws of confidentiality.
Mediation is great option for legal cases. It is a concept which is here to stay. All the litigants can take advantage of the same and all o them can be winner.
This document discusses alternative dispute resolution (ADR) methods. It outlines five main types of ADR: negotiation, mediation, conciliation, arbitration, and collaborative law. Negotiation involves parties discussing to find an agreed solution without being binding. Mediation uses an impartial third party to direct discussion but not suggest outcomes. Conciliation is like mediation but the third party can make suggestions. Arbitration uses a third party to impose a binding decision. Collaborative law involves lawyers collaborating to settle without litigation. Advantages of ADR include being less formal, cheaper and faster than courts. Disadvantages are some disputes not being suitable and decisions not always legally binding.
What to Look out for while choosing Arbitration ahead of Regular Litigation.
Essentials of an Arbitration Agreement.
Arbitration Act | ad hoc |Institutional Arbitration |
There is no general or specific guideline for the mediators regarding the maintenance of equal participation and opportunity for the parties that may create serious problem in case of power imbalance. The mediation provisions at the pre-trial and the appellate stage but mediation mechanism upon conclusion of the trial before the pronouncement of judgment has not been incorporated into the CPC.
The document outlines guidelines for mediation, including that parties work to reach their own agreement with the mediator's assistance rather than having decisions made for them. It specifies that communications should generally be joint but the mediator may meet privately with each party. The document also details confidentiality of the process, exceptions, obligations of parties, payment policies, and signatures required of all parties to agree to the guidelines.
Recorded on November 22, 2012 - This webinar in the Family Law Education for Women (FLEW) series looks at a variety of ways to settle issues about children, property, and support, when a woman ends the relationship with her partner. What are the pros and cons of mediation, arbitration, and court, especially when there is or was abuse in the family? METRAC's Legal Director, Tamar Witelson, discusses the issues with Victoria Starr, a specialist in family law practice, and founder of Starr Family Law. Watch the webinar at:
http://yourlegalrights.on.ca/webinar/Conflict-Court-or-Another-Way-Different-Ways-of-Resolving-a-Family-Dispute
The document discusses the validity terms of contracts, including mutual consent, capacity, certainty of object, and lawful cause. It defines key concepts like offer and acceptance, noting an offer must be definite and communicated to create a binding promise upon acceptance. Acceptance can be expressed or implied through silence based on business customs. The parties must have capacity and mental ability to contract, the object must be possible and defined, and there must be lawful cause such as exchange of goods/services. The document also discusses principles of freedom of contract and consensus between parties to establish a valid agreement.
The document provides an overview of effective advocacy in commercial arbitration. It discusses key differences between arbitration and litigation, including that arbitrators are bound by the terms of the arbitration agreement rather than legal precedents. It also covers important considerations for advocacy in arbitration, such as designing the arbitral process, selecting arbitrators, applicable rules, written pleadings, presenting evidence and conducting hearings. The document aims to educate advocates on best practices for arbitration.
This document discusses the role of lawyers in providing advice and engaging in negotiations on behalf of clients. It notes that giving advice and negotiating are among the most common tasks lawyers perform. When giving advice, lawyers must consider relevant laws and how courts may rule, alongside clients' goals and options. Negotiations often involve making proposals, considering counterproposals, and compromising to reach agreements. Lawyers must be equipped with proper authority before negotiating and ensure any agreements are legally binding. The document provides details on lawyers' involvement in various types of negotiations, including real estate matters.
This document discusses alternate dispute resolution (ADR) options like mediation and arbitration that can be pursued before, during, or instead of litigation. It explains the purposes of voluntary ADR, which include finding a safe way to discuss settlement, obtaining an objective viewpoint, and avoiding the costs of litigation. It also discusses risks and benefits of binding vs. non-binding ADR options and tips for selecting mediators/arbitrators and preparing for ADR processes. Sample contract clauses for arbitration and dispute resolution within an organization are also provided.
Practical tips on choosing the right dispute resolution strategy, entering into enforceable agreements for ADR, and navigating complex matters such as arbitrations with an international component.
This document provides an overview of contract law, defining a contract and outlining the basic elements required for any contract to be valid. It discusses the requirements of mutual assent (offer and acceptance), consideration, legality, and capacity. It also describes different types of contracts, including unilateral and bilateral, executory and executed, void and voidable. Technical contracts like negotiable instruments are also mentioned. The key elements that must be present in any legally binding contract are an offer, acceptance, consideration, capacity of the parties, and a legal purpose.
Appointment of arbitrator as per The Arbitration and Conciliation (Amendment)...Dr K M SONI
New Arbitration and Conciliation (Amendment) Act 2015 has provisions for speedy resolution and for impartial and independent arbitration. Some provisions of the new Act are discussed.
This document provides an overview of legal aspects of contracts. It defines a contract as a legally binding agreement between two or more parties where something is promised to be done. The key elements for a valid contract are offer, acceptance, consideration, capacity, legality, possibility, and good faith. It also describes different types of contracts such as simple contracts, specialty contracts, and contracts of record. Finally, it discusses how contracts can be discharged through performance, breach, renunciation, agreement, lapse of time, bankruptcy, death, or frustration. Businesses enter into many contracts on a regular basis for activities like obtaining credit, selling goods, hire purchases, and more.
Project dispute avoidance and mitigation through conciliation and arbitrationDr K M SONI
Disputes are common in society so also in construction contracts. It is always beneficial to the parties and the Nation to resolve them at right time i.e. during execution of the project and if not through conciliation.
T1, 2021 business law lecture 4 - contracts 3markmagner
The document discusses key concepts in contract formation including consent, legality, mistake, misrepresentation, duress and unconscionable conduct. It explains that for a contract to be valid, there must be genuine consent between the parties without mistakes, misrepresentations, duress or other vitiating factors. It also discusses implied terms, integration of collateral contracts, and consequences of signing documents such as exclusion clauses. Legality of contract purpose and restraint of trade provisions are also addressed.
The document summarizes the mediation process for resolving civil disputes. It explains that mediation involves the plaintiff, defendant, their lawyers, and a neutral mediator meeting to negotiate a settlement. The mediator's role is to facilitate discussion between the parties to help them reach a voluntary agreement. The process begins with joint sessions where each side presents their case, followed by private caucus sessions where the mediator shuttles between the parties to narrow their differences. If an agreement is reached, the lawyers document the settlement terms in a legally binding contract. The document outlines the key steps and advantages of mediation over traditional litigation.
The document discusses negotiation, providing definitions, characteristics, types, approaches, and the role of lawyers. It defines negotiation as an interchange between parties to reach a compromise. Key points include:
- Negotiation is a voluntary, non-binding process where parties directly interact to resolve differences and arrive at a mutually agreed settlement.
- There are competitive and cooperative styles of negotiation, as well as distributive and integrative approaches.
- Lawyers play an important role in negotiations by clarifying issues, managing tensions, understanding legal principles, and advising on consequences.
- Indian law encourages negotiation through provisions in statutes like the Civil Procedure Code and Hindu Marriage Act. However, negotiation has no statutory recognition
Piddington CPD - Mediation - 9 November 2016 FinalAaron McDonald
This document summarizes key points from a mediation masterclass discussing when to mediate and how to prepare for mediation.
The first point made is that mediating early in a case has advantages, as even if a case doesn't settle at the first mediation, it allows for an assessment of further steps needed to improve the chances of settlement later. Subsequent sections discuss ensuring the right people attend mediation, such as those with authority to settle; providing documents to the mediator in advance; discussing the case merits and costs with the client in advance; and considering alternatives to settlement like BATNA and WATNA. Finally, the document emphasizes that preparing for mediation is as important as preparing for trial.
This document discusses confidentiality in mediation. It outlines that communications made during mediation are confidential under Texas law and exceptions only apply if required by law, such as reporting child or elder abuse. The standards of conduct for mediators also require maintaining confidentiality. While confidentiality promotes trust and candid discussions, there are considerations against it such as preventing delay tactics or the misrepresentation of facts. The meaning of "confidential" may not always be totally secret, and case law explores the limits of confidentiality.
Commercial disputes are certain issues that need to be addressed as soon as possible. Consult primedm.com.au for a commercial mediation, to sort out your problems.
Property disputes are awfully bad and they should be sorted as soon as possible. Visit primedm.com.au for the best solution in the form of property mediation.
Property disputes are awfully bad and they should be sorted as soon as possible. Visit primedm.com.au for the best solution in the form of property mediation.
Similar to ADR & IP-Mediation What It Is, How It Works & How to Draft ADR Provisions (20)
ADR & IP-Mediation What It Is, How It Works & How to Draft ADR Provisions
1. ADR & IP: Mediation-
What It Is, How It Works & How to
Draft ADR Provisions
Erica Bristol, Esq.
2. Erica Bristol
Disclaimer
This presentation does not constitute legal
advice, does not create an attorney-client
relationship and should not be considered a
substitute for professional legal advice.
2
3. Erica Bristol
Topics Covered
• WHAT IS MEDIATION?
• BENEFITS VS. LIMITATIONS
• MEDIATION CONFIDENTIALITY/PRIVILEGE:
STATE VS. FEDERAL
• DRAFTING CONSIDERATIONS
• ELEMENTS OF A MEDIATION SESSION:
BEFORE, DURING, AFTER
• TIPS FOR SUCCESSFUL MEDIATIONS
3
5. Erica Bristol
Definition of Mediation
• CA Evidence Code §1115: “a process in which
a neutral person or persons facilitate
communication between the disputants to
assist them in reaching a mutually acceptable
agreement.”
• One method of alternative dispute resolution
(ADR)
5
6. Erica Bristol
Mediation Compared to
Other Forms of ADR
• Mediation
– Out of court
– Informal
– Mediator has no decision-making power
– Parties control outcome, cost, attendees
– Confidential
• Arbitration
– Out of court
– Informal discovery rules
– Parties control cost
– Arbitrator has decision-making power
• Binding or Non-Binding
• Early Neutral Evaluation
– Strength/weakness assessment
– Evaluation of possible outcome in court
– Recommendations persuasive but not binding
• Fact Finding, Mini-Trial
6
7. Erica Bristol
What Licensing Disputes Can Be
Resolved Using Mediation?
• Breach of Contract
• Accounting/royalty calculation/audit provisions
• Determination of License Grant
– Term, territory, rights, limitations, exclusivity
• Subcontractor performance
• Use beyond license grant
– Infringement matters
• Vague, ambiguous terms
• Damages (VIP)
7
9. Erica Bristol
Benefits of Mediation
• Less Expensive than litigation
– Parties control cost
• Less time (session can be scheduled quickly)
• Confidential
• Parties control outcome
• Solutions not available in litigation/arbitration
• In Person or “Virtual”
– Conference call, web conference, Skype™
• Saves travel/lodging costs
– Depends on dispute
• Good success rate (if parties want to settle)
9
10. Erica Bristol
Limitations of Mediation
• No decision binding on parties
• Parties don’t have to settle
• May end up in arbitration/litigation anyway
– Longer time frame for resolution
• Confidentiality restrictions
10
11. Erica Bristol
How Much Does Mediation Cost?
• Varies
• Hourly, Half Day, Full Day
• $300/hr.+
• Admin Fees
• Include mediation costs in legal budget
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12. Erica Bristol
Who Should Attend?
• Parties
• Counsel
– Knowledge of case, good negotiation skills
• Other Attendees (discretionary)
– Witnesses
– Consultants
– Experts
– Translators
– Insurance Representatives
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13. Erica Bristol
When Does Mediation Take Place?
• Before lawsuit/arbitration
• During litigation
• Pursuant to contract
– Informal attempt to resolve (aka “negotiation”)
– Mediation
– Arbitration/Litigation
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14. Erica Bristol
Voluntary vs. Involuntary Mediation
Voluntary: by contract (oral or written)
– Usually prior to arbitration/litigation
– Parties can spontaneously agree
Involuntary: court-ordered mediation
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15. Erica Bristol
Court-Ordered Mediation
• Litigated cases
• Federal and state courts
– State courts: mediation statutes, California Rules of Court
– Federal courts: local rules
• Typically 6-12 months from filing complaint
• Mediator selected by
– Parties (from court panel)
• First 3 hours free
– Court randomly selects
– Parties hire private mediator (fee)
• Sometimes too early
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16. Erica Bristol
California Rules of Court
Court-connected mediation in civil cases
– 3.850, et. seq. (mediator rules of conduct)
– 3.865, et. seq. (complaint procedures)
– 3.894 (serve participant list 5 days before session;
must appear in person unless excused by
mediator)
– 3.1385 (notify mediator of settlement 2 days
before session or possible fines)
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17. Erica Bristol
Selecting a Mediator
• Panel vs. Individual
• Attorney vs. Non-Attorney
• Experience
• Skills
• Referral
• Location
• Fees
• Conflict check
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19. Erica Bristol
California’s Mediation Laws:
Evidence Code §703.5, §§1115-1128
Confidentiality
Admissibility
Communications
Documents/Materials
Mediator testimony, competency
Conclusion of Mediation (by Law)
Enforceability of mediated settlement agreements
– oral and written
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20. Erica Bristol
Confidential and Privileged
Communications, Writings
1119(a): Statements and admissions in mediation
inadmissible, not subject to discovery, disclosure can’t be
compelled in non-criminal action
1119(b): Writings prepared in connection with mediation
inadmissible, not subject to discovery, disclosure can’t be
compelled in non-criminal action
1119(c): All communications, negotiations, or settlement
discussions by and between participants in the course of a
mediation or a mediation consultation shall remain
confidential.
Ok for criminal?
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21. Erica Bristol
Confidentiality Continues after
Mediation Ends
1126: Communications and writings remain
inadmissible, protected from disclosure, and
confidential to the same extent after the
mediation ends.
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22. Erica Bristol
What about the Mediator’s Findings,
Recommendations?
1121: Inadmissible, unless all parties agree in
writing (or orally per Section 1118)
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23. Erica Bristol
Mediators Incompetent to Testify
Evidence Code §703.5
Exceptions:
Statement or conduct that could
– (a) give rise to civil or criminal contempt,
– (b) constitute a crime,
– (c) be the subject of investigation by the State Bar
or Commission on Judicial Performance, or
– (d) give rise to disqualification proceedings under
paragraph (1) or (6) of subdivision (a) of Section
170.1 of the Code of Civil Procedure
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24. Erica Bristol
Subpoenaing Mediator Testimony/ Production
1127: no subpoenaing mediators to testify or
produce a writing
If testimony/writing found to be inadmissible or
protected from disclosure, court/administrative
body shall award reasonable attorneys’ fees
and costs to the mediator
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25. Erica Bristol
Reference to Mediation During Trial
1128: Reference to mediation during
subsequent trial is an Irregularity per CCP 657
Grounds for vacating or modifying the decision
in that proceeding, in whole or in part, and
granting a new or further hearing on all or part
of the issues, if the reference materially
affected the substantial rights of the party
requesting relief.
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26. Erica Bristol
Evidence Otherwise Admissible
1120: Evidence otherwise admissible or subject
to discovery outside of a mediation or a
mediation consultation shall not be or become
inadmissible or protected from disclosure solely
by reason of its introduction or use in a
mediation or a mediation consultation.
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27. Erica Bristol
Communications/Writings
Related to Mediation Admissible If:
1122:
• All participants agree in writing (or orally per section 1118)
• Communication/writing was prepared by/on behalf of less
than all participants:
– those participants expressly agree in writing (or orally per Section
1118) to its disclosure, and
– the communication/writing does not disclose anything said or done or
any admission made in the mediation.
• If mediator expressly agrees to disclosure, that binds
mediator’s assistants
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28. Erica Bristol
Are Mediated
Settlement Agreements Enforceable?
1123: yes, if:
• Signed by parties
• Says it’s admissible/subject to disclosure/words to that effect;
or
• States it’s enforceable/binding/words to that effect; or
• All parties to agreement expressly agree in writing (or orally
per Section 1118) to its disclosure; or
• Agreement is used to show fraud, duress, or illegality relevant
to an issue in dispute.
Admissibility of oral agreements: Section 1124
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29. Erica Bristol
Are Oral Agreements in Mediation
Binding on Parties?
• 1118: yes, if:
– (a) Recorded by court reporter or reliable means
of audio recording
– (b) Terms put on record in presence of
parties/mediator and parties state on record they
agree to terms
– (c) Parties state on record agreement is
enforceable/binding/words to that effect.
– (d) Recording is reduced to writing and signed by
parties within 72 hours after recorded.
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30. Erica Bristol
When Does a Mediation End (by Law)?
(For purposes of confidentiality)
• No communication between mediator and any of the parties
for 10 calendar days
– Mediator and parties may shorten/extend time by
agreement
• Parties execute settlement agreement that fully resolves
dispute
• Oral agreement under Section 1118 fully resolves dispute
• Mediator gives participants signed writing that states
mediation is terminated or words to that effect consistent
with Section 1121
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31. Erica Bristol
When Does a Mediation
End by Law, cont.
• Party provides mediator, participants with signed writing
mediation is terminated or words to that effect consistent with
Section 1121.
– More than two parties: mediation may continue with
remaining parties or terminate
• Partially resolved disputes:
– Parties execute written settlement agreement that partially
resolves the dispute
– Oral agreement that partially resolves the dispute is reached
per Section 1118
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32. Erica Bristol
Cases
• In re Marriage of Eisendrath (2003) 109 Cal. App.
4th 351
• Foxgate Homeowners' Association, Inc. v.
Bramalea California, Inc. (2001) 26 Cal.4th 1
• Cassel vs. Superior Court (2011) 51 Cal.4th 113
But, see
• Milhouse v. Travelers Commercial Ins. Co.
(C.D.Cal. 2013) 982 F.Supp.2d 1088
– currently on appeal to 9th Circuit (Case No. 13-56959)
• CA Law Commission activity
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33. Erica Bristol
Federal Mediation
Confidentiality and Privilege
• Confidentiality: Yes (28 U.S.C. § 652(d))
– Local rules
– Parties’ obligations to each other
• Privilege: Court-by-court basis!
– 4th, 9th declined to adopt, federal circuit punted the issue
– Northern District CA: yes; others, no
• Cases
– Babasa v. LensCrafters, Inc., (9th Cir. 2007) 498 F.3d 972
– Facebook, Inc. v. Pacific Northwest Software, Inc., (9th Cir. 2011) 640 F.3d 1034
– Kimberly-Clark Worldwide v. First-Quality Baby Products, (2011) No. 2011-
1157 (unpublished)
Time for a federal mediation privilege for IP issues?
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35. Erica Bristol
Typical Elements of a Mediation Clause
• “Condition Precedent” to arbitration/litigation
• Trigger (written notice)
• Selection of Mediator
• Place
– State, county?
– Know rules for jurisdiction (local rules)
• Who pays
• Exclusions (certain claims, equitable remedies, e.g. prelim. injunction)
• Tolling of SOL while in mediation
• Time frame for completion
– What happens if not completed w/in time frame
• Consequences for failing to mediate
– No recovery of attorneys’ fees, costs
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Sample Mediation Clauses, cont.
If a party [select: commences any action or proceeding at law or in
equity OR files a claim in arbitration] without first offering to
mediate, or if a party fails to respond to a request for mediation
within [specify: number of calendar days] after the date of such
request, or otherwise refuses to participate in mediation in good
faith, then that party shall not be entitled to recover the attorneys
fees, if any, to which it would otherwise have been entitled under
this Agreement as prevailing party in [select: litigation OR
arbitration].
“Good faith” participation shall mean direct participation in the
mediation by executives who are authorized to resolve the matter on
behalf of the parties whom they represent, and shall not mean that
any party is required to come to any agreement.
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Sample Mediation Clauses, cont.
The mediator shall be [specify qualifications, e.g., ‘with
substantial training and experience as a mediator’] and
shall be selected [specify manner of selection, e.g. in
accordance with the afore-mentioned mediation rules, by
mutual agreement of the parties, or by mutual selection
from a panel of mediators offered by the provider
organization {NOTE that in the event one of the two latter
alternatives is selected, the provision needs to add a
clause as to what happens if parties fail to reach
agreement within a certain period of time, for example by
naming an appointing authority}]. Mediation fees,
including any administrative fee, shall be borne by the
parties in equal shares.
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Sample Mediation Clauses, cont.
If and to the extent that, within [specify number] calendar days
after the date of the request for mediation, or within [specify
number] calendar days after the mediator’s notice of acceptance,
whichever occurs later, the dispute between the parties has not
been fully resolved, then unless both parties have agreed to
extend the time for completion of the mediation, [select: either
party shall be free to pursue any and all remedies available under
this Agreement or at law or in equity OR the unresolved issues
shall be finally resolved by binding arbitration pursuant to the
terms of Paragraph___ of this Agreement OR the matter shall be
finally resolved by judicial reference pursuant to the terms of
Paragraph___ of this Agreement].
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41. Erica Bristol
Typical Mediation Session
• Before:
– Attorneys communicate with mediator
– Agenda
– Mediation Briefs
• During:
– In Person vs. “Virtual”
– Joint session vs. caucus
– “Mediator’s Proposal”
– Settlement: Short/Long Agreement (should be in writing, use
“enforceable” language)
• After:
– Long settlement agreement drafted (use enforceable, binding
language)
– Try to settle after session/schedule another session
– Stay in contact with mediator (confidentiality)
– No settlement-proceed to arbitration, litigation
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43. Erica Bristol
MEDIATION TIPS
• Prepare!
• Set agenda
• Manage client expectations
– Ethical duty to explain mediation, confidentiality/privilege?
• Come with the desire to settle
– Consider creative settlement options
• Work on settlement agreement ahead of time
• Don’t Fear the “Joint Session”
• Negotiate, don’t litigate
• Know how to calculate damages (VIP!)
• Consider “mock mediation”
– Good for new attorneys
– Work on skills, weaknesses
• Sometimes, the problem is YOU
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CONCLUSION
• Mediation is a great alternative to litigating
licensing disputes.
• Helps parties save time, money, reputation.
• Mediated settlement agreements can be
enforceable.
• Quick and confidential resolution strengthens
client relationships and trust.
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