Grant Jones provides an overview of alternative dispute resolution (ADR) techniques for chartered accountants, focusing on arbitration, mediation, and expert determination. He summarizes HM Revenue and Customs' new mediation scheme for small businesses, which aims to resolve tax disputes in a cost-effective manner. However, some argue the scheme lacks independence as the mediators are HMRC staff. The document also outlines the mediation process, the roles of the mediator, and techniques mediators use to facilitate agreement between disputing parties.
1. Mediation has a long history in Malaysia as a preferred method for resolving disputes before the British introduced litigation. However, litigation became more popular after its introduction. 2. To make dispute resolution more accessible, statutes later established mediation centers to provide free mediation for consumer and financial disputes. 3. Courts are now encouraging mediation to help reduce backlogs, such as making it part of case management or exempting mediated cases from trial. The goal is for mediation to again become a widely used dispute resolution method.
Three main methods of alternative dispute resolution are discussed: arbitration, mediation, and expert evaluation. Arbitration involves a final binding decision by an impartial person. Mediation uses a neutral party to facilitate discussion between disputing parties to find a mutual agreement. Expert evaluation uses an independent expert as a neutral fact-finder, especially for complex business disputes. ADR methods are increasingly used to resolve various types of disputes including sports contracts, unfair/misleading sales practices, and property/land disputes to reduce court backlogs and maintain relationships. However, more research is still needed to fully evaluate the impact of ADR programs.
Alternate Dispute Resolution: The Employers Alternative to Legal LimboEmployers Resource
Employers are often the target of employee lawsuits. The traditional litigation process falls short in protecting employers. Our ADR program can help your business eliminate litigation and save you in legal costs and hassle. Discover the best alternative to the courtroom that manages your disputes quickly, economically, fairly, and privately.
The document discusses alternative dispute resolution (ADR) methods in India. It describes arbitration as a process where disagreeing parties agree to be bound by a third party's decision. Mediation involves a third party helping the two sides reach a settlement. Laws like the Civil Procedure Code and Arbitration and Conciliation Act promote ADR methods like lok adalats and consumer forums to provide faster and cheaper resolution compared to litigation. Common ADR methods mentioned are arbitration, mediation, conciliation, lok adalats and consumer redressal forums.
Alternative dispute resolution: Interim MeasuresRittika Dattana
This document provides an overview of interim measures in arbitration proceedings under the Indian Arbitration and Conciliation Act of 1996. It defines interim measures as temporary relief granted pending the final resolution of a dispute. Section 9 of the Act allows parties to approach courts to seek interim measures to preserve assets or evidence. The document discusses the types of interim measures available, including injunctive relief, attachment orders, and appointing receivers. It analyzes the scope of interim measures under Section 9 and their purpose of safeguarding parties from harm due to delays in the arbitration process.
Alternative Dispute Resolution (ADR) as a Mechanism of Peace in AfricaChantal Abam
conflict resolution has always been an issue of the Criminal Justice System at the international and national levels, but globalization thinking has brought about new mechanism for resolving conflicts.
1. Mediation has a long history in Malaysia as a preferred method for resolving disputes before the British introduced litigation. However, litigation became more popular after its introduction. 2. To make dispute resolution more accessible, statutes later established mediation centers to provide free mediation for consumer and financial disputes. 3. Courts are now encouraging mediation to help reduce backlogs, such as making it part of case management or exempting mediated cases from trial. The goal is for mediation to again become a widely used dispute resolution method.
Three main methods of alternative dispute resolution are discussed: arbitration, mediation, and expert evaluation. Arbitration involves a final binding decision by an impartial person. Mediation uses a neutral party to facilitate discussion between disputing parties to find a mutual agreement. Expert evaluation uses an independent expert as a neutral fact-finder, especially for complex business disputes. ADR methods are increasingly used to resolve various types of disputes including sports contracts, unfair/misleading sales practices, and property/land disputes to reduce court backlogs and maintain relationships. However, more research is still needed to fully evaluate the impact of ADR programs.
Alternate Dispute Resolution: The Employers Alternative to Legal LimboEmployers Resource
Employers are often the target of employee lawsuits. The traditional litigation process falls short in protecting employers. Our ADR program can help your business eliminate litigation and save you in legal costs and hassle. Discover the best alternative to the courtroom that manages your disputes quickly, economically, fairly, and privately.
The document discusses alternative dispute resolution (ADR) methods in India. It describes arbitration as a process where disagreeing parties agree to be bound by a third party's decision. Mediation involves a third party helping the two sides reach a settlement. Laws like the Civil Procedure Code and Arbitration and Conciliation Act promote ADR methods like lok adalats and consumer forums to provide faster and cheaper resolution compared to litigation. Common ADR methods mentioned are arbitration, mediation, conciliation, lok adalats and consumer redressal forums.
Alternative dispute resolution: Interim MeasuresRittika Dattana
This document provides an overview of interim measures in arbitration proceedings under the Indian Arbitration and Conciliation Act of 1996. It defines interim measures as temporary relief granted pending the final resolution of a dispute. Section 9 of the Act allows parties to approach courts to seek interim measures to preserve assets or evidence. The document discusses the types of interim measures available, including injunctive relief, attachment orders, and appointing receivers. It analyzes the scope of interim measures under Section 9 and their purpose of safeguarding parties from harm due to delays in the arbitration process.
Alternative Dispute Resolution (ADR) as a Mechanism of Peace in AfricaChantal Abam
conflict resolution has always been an issue of the Criminal Justice System at the international and national levels, but globalization thinking has brought about new mechanism for resolving conflicts.
This document summarizes the views of GE on the need for early resolution in international arbitration based on their experiences. The key points are:
1. Businesses prioritize efficiency, speed, and certainty in dispute resolution but often find international arbitration takes too long, costing unnecessary time and money.
2. While international arbitration has advantages over litigation, its focus on due process delays resolution, frustrating businesses who just want to assess exposure and move on.
3. GE provides examples where arbitration took years with no early decisions on key issues, forcing frustrated parties to expensive settlements just to achieve closure, rather than fair resolution.
4. An early resolution procedure could help address this gap if arbitrators ensured its dilig
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.
BUS 115 Chap004 alternative dispute resolutionneogenesis6
This document discusses alternative dispute resolution (ADR) techniques that can be used to resolve disputes outside of traditional litigation. It describes various ADR options like mediation, arbitration, early neutral evaluation, and summary jury trials. Mediation involves a neutral third party helping the disputing parties find a solution, while arbitration has a neutral party make a binding decision. The document also discusses proactive ADR approaches used to prevent disputes from arising, such as including ADR clauses in contracts. Overall, the summary provides an overview of alternative dispute resolution options and their goals of providing a more efficient alternative to 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.
In response to rising court costs, delays and congestion, the need to facilitate access to justice and to provide more 'effective' forms of dispute resolution, the phenomenon known as ADR was born.
This presentation provides an overview of Alternative Dispute Resolution (ADR) and different ADR mechanisms used all over the world.
The document provides an overview of alternative dispute resolution (ADR) in India. It discusses the problems and delays faced by the court system that necessitate ADR mechanisms. It outlines various ADR methods like negotiation, conciliation, mediation and arbitration. It discusses the Lok Adalat system established under the Legal Services Authority Act and highlights advantages of ADR like lower costs, flexibility and faster resolutions compared to litigation. The document also notes some limitations of ADR and the importance of a supportive legal framework and cultural norms for ADR effectiveness.
This document appears to be a student research project on alternative dispute resolution focusing on competitive negotiation. It includes an introduction to negotiation principles and styles. It discusses collaborative negotiation and its features. It then defines competitive negotiation, describing it as an aggressive, win-lose approach. The document will compare and contrast collaborative and competitive negotiation, ultimately criticizing the latter approach. It includes headings for chapters on negotiation, styles, competitive negotiation, and a comparison of the two approaches.
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.
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.
Alternative dispute resolution (ADR) provides methods for settling disputes outside of litigation. In Second Life, ADR can help resolve commerce and business disputes in a neutral way. The eJustice Centre was created to offer ADR services through mediation and arbitration. Trained professionals conduct mediation to help parties find compromise. If mediation fails, arbitration judges make a binding decision. Their goal is to establish trust and neutrality in resolving conflicts for Second Life residents.
Alternative Dispute Resolution (ADR) [LLB -309] cpjcollege
Alternative Dispute Resolution has become the primary means by which cases are resolved now days, especially commercial, business disputes. It has emerged as the preferred method for resolving civil cases, with litigation as a last resort. Alternative Dispute Resolution provides an overview of the statutory, procedural, and case law underlining these processes and their interplay with litigation. A significant theme is the evolving role of
professional ethics for attorneys operating in non-adversarial settings. Clients and courts increasingly express a preference for attorneys who are skilled not only in litigation but in problem-solving, which costs the clients less in terms of time, money and relationship. The law of ADR also provides an introduction to negotiation and mediation theory.
Alternative dispute resolution (ADR) describes ways for parties to settle civil disputes without formal court hearings, using arbitration, mediation, or conciliation with an independent third party. Common types of ADR include arbitration, where a specialist decides the dispute, and mediation, where an independent mediator helps facilitate settlement discussions between the parties. The Civil Procedure Rules encourage parties to attempt ADR before full litigation and courts can impose costs penalties if parties unreasonably refuse ADR offers.
This newsletter provides updates on dispute resolution and conflict management. It discusses the need for modernizing dispute resolution systems to move beyond litigation-focused approaches. Alternative dispute resolution methods like mediation can help reduce costs and conflicts compared to prolonged legal battles. The newsletter advocates for incorporating dispute resolution clauses in commercial contracts to help manage risks and preserve business relationships if disputes arise. It also discusses challenges in international dispute resolution and the importance of tailored approaches.
The document discusses various alternative dispute resolution (ADR) tools for resolving conflicts without relying on third parties like judges. It describes common ADR tools like mediation, mini-trials, summary jury trials, and arbitration. These tools typically involve a third party to help facilitate negotiations between disputing parties. The document advises readers to identify their goals and obstacles to select the right ADR tool, noting that different tools have varying costs, speeds, abilities to preserve relationships, and other factors. It emphasizes solving problems through interest-based negotiation and effective communication to avoid needing third parties to decide outcomes.
The document discusses alternative dispute resolution (ADR) in India. It notes that ADR was introduced in India to help address the huge backlog of cases overwhelming the court system. ADR provides parties more cost-effective and timely mechanisms to resolve disputes through negotiation, mediation, arbitration, and conciliation outside of litigation. The growth of ADR in India has helped promote access to justice and reduce strain on the courts.
Alternative Dispute Resolution in ZimbabweTendai Chiunya
The document discusses alternative dispute resolution (ADR) mechanisms in Zimbabwe for resolving employment disputes. It provides examples of different types of disputes that can arise between employers and employees. The main ADR processes described are conciliation through labor officers or designated agents, and arbitration, which can be either voluntary or compulsory. If conciliation or arbitration does not resolve the dispute, it can be appealed to the Labor Court. The summary concludes that while ADR promotes conflict resolution and avoids negative publicity, the processes in Zimbabwe can be prolonged due to lack of resources in the labor system.
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.
A comparative legal analysis of the application of alternativeAlexander Decker
This document discusses alternative dispute resolution (ADR) techniques for banking disputes, with a focus on Nigeria and select countries. It begins by providing context on disputes in the banking industry, which can be between banks/customers, banks/regulators, and customers/regulators. The paper then defines ADR as processes outside formal litigation, like mediation and arbitration, to resolve disputes quickly and at low cost. It examines key ADR techniques used for financial disputes in countries like Italy, Germany, France, and the UK. The main ADR approaches in Nigeria - mediation, conciliation, and arbitration - are also overviewed in terms of their processes and applicable laws.
The document tells a story about a user who never wrote reviews and did not like to read them either. It describes a user who never contributed their own opinions in writing reviews. The story is told in a rhyming fashion.
This document summarizes the key features of the five classes of antibodies (immunoglobulins): IgG, IgM, IgA, IgD, and IgE. It describes their structure (monomer, dimer, pentamer), percentage in serum, locations, half-lives, ability to activate complement, placental transfer, and known functions such as enhancing phagocytosis, neutralizing pathogens, and mediating allergic reactions. IgG is the most abundant antibody and has subclasses with varying abilities to activate complement and bind Fc receptors. IgM is the first antibody produced during infection. IgA provides protection to mucosal surfaces. IgD and IgE have more specialized roles in initiating immune responses and allergies,
This document summarizes the views of GE on the need for early resolution in international arbitration based on their experiences. The key points are:
1. Businesses prioritize efficiency, speed, and certainty in dispute resolution but often find international arbitration takes too long, costing unnecessary time and money.
2. While international arbitration has advantages over litigation, its focus on due process delays resolution, frustrating businesses who just want to assess exposure and move on.
3. GE provides examples where arbitration took years with no early decisions on key issues, forcing frustrated parties to expensive settlements just to achieve closure, rather than fair resolution.
4. An early resolution procedure could help address this gap if arbitrators ensured its dilig
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.
BUS 115 Chap004 alternative dispute resolutionneogenesis6
This document discusses alternative dispute resolution (ADR) techniques that can be used to resolve disputes outside of traditional litigation. It describes various ADR options like mediation, arbitration, early neutral evaluation, and summary jury trials. Mediation involves a neutral third party helping the disputing parties find a solution, while arbitration has a neutral party make a binding decision. The document also discusses proactive ADR approaches used to prevent disputes from arising, such as including ADR clauses in contracts. Overall, the summary provides an overview of alternative dispute resolution options and their goals of providing a more efficient alternative to 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.
In response to rising court costs, delays and congestion, the need to facilitate access to justice and to provide more 'effective' forms of dispute resolution, the phenomenon known as ADR was born.
This presentation provides an overview of Alternative Dispute Resolution (ADR) and different ADR mechanisms used all over the world.
The document provides an overview of alternative dispute resolution (ADR) in India. It discusses the problems and delays faced by the court system that necessitate ADR mechanisms. It outlines various ADR methods like negotiation, conciliation, mediation and arbitration. It discusses the Lok Adalat system established under the Legal Services Authority Act and highlights advantages of ADR like lower costs, flexibility and faster resolutions compared to litigation. The document also notes some limitations of ADR and the importance of a supportive legal framework and cultural norms for ADR effectiveness.
This document appears to be a student research project on alternative dispute resolution focusing on competitive negotiation. It includes an introduction to negotiation principles and styles. It discusses collaborative negotiation and its features. It then defines competitive negotiation, describing it as an aggressive, win-lose approach. The document will compare and contrast collaborative and competitive negotiation, ultimately criticizing the latter approach. It includes headings for chapters on negotiation, styles, competitive negotiation, and a comparison of the two approaches.
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.
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.
Alternative dispute resolution (ADR) provides methods for settling disputes outside of litigation. In Second Life, ADR can help resolve commerce and business disputes in a neutral way. The eJustice Centre was created to offer ADR services through mediation and arbitration. Trained professionals conduct mediation to help parties find compromise. If mediation fails, arbitration judges make a binding decision. Their goal is to establish trust and neutrality in resolving conflicts for Second Life residents.
Alternative Dispute Resolution (ADR) [LLB -309] cpjcollege
Alternative Dispute Resolution has become the primary means by which cases are resolved now days, especially commercial, business disputes. It has emerged as the preferred method for resolving civil cases, with litigation as a last resort. Alternative Dispute Resolution provides an overview of the statutory, procedural, and case law underlining these processes and their interplay with litigation. A significant theme is the evolving role of
professional ethics for attorneys operating in non-adversarial settings. Clients and courts increasingly express a preference for attorneys who are skilled not only in litigation but in problem-solving, which costs the clients less in terms of time, money and relationship. The law of ADR also provides an introduction to negotiation and mediation theory.
Alternative dispute resolution (ADR) describes ways for parties to settle civil disputes without formal court hearings, using arbitration, mediation, or conciliation with an independent third party. Common types of ADR include arbitration, where a specialist decides the dispute, and mediation, where an independent mediator helps facilitate settlement discussions between the parties. The Civil Procedure Rules encourage parties to attempt ADR before full litigation and courts can impose costs penalties if parties unreasonably refuse ADR offers.
This newsletter provides updates on dispute resolution and conflict management. It discusses the need for modernizing dispute resolution systems to move beyond litigation-focused approaches. Alternative dispute resolution methods like mediation can help reduce costs and conflicts compared to prolonged legal battles. The newsletter advocates for incorporating dispute resolution clauses in commercial contracts to help manage risks and preserve business relationships if disputes arise. It also discusses challenges in international dispute resolution and the importance of tailored approaches.
The document discusses various alternative dispute resolution (ADR) tools for resolving conflicts without relying on third parties like judges. It describes common ADR tools like mediation, mini-trials, summary jury trials, and arbitration. These tools typically involve a third party to help facilitate negotiations between disputing parties. The document advises readers to identify their goals and obstacles to select the right ADR tool, noting that different tools have varying costs, speeds, abilities to preserve relationships, and other factors. It emphasizes solving problems through interest-based negotiation and effective communication to avoid needing third parties to decide outcomes.
The document discusses alternative dispute resolution (ADR) in India. It notes that ADR was introduced in India to help address the huge backlog of cases overwhelming the court system. ADR provides parties more cost-effective and timely mechanisms to resolve disputes through negotiation, mediation, arbitration, and conciliation outside of litigation. The growth of ADR in India has helped promote access to justice and reduce strain on the courts.
Alternative Dispute Resolution in ZimbabweTendai Chiunya
The document discusses alternative dispute resolution (ADR) mechanisms in Zimbabwe for resolving employment disputes. It provides examples of different types of disputes that can arise between employers and employees. The main ADR processes described are conciliation through labor officers or designated agents, and arbitration, which can be either voluntary or compulsory. If conciliation or arbitration does not resolve the dispute, it can be appealed to the Labor Court. The summary concludes that while ADR promotes conflict resolution and avoids negative publicity, the processes in Zimbabwe can be prolonged due to lack of resources in the labor system.
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.
A comparative legal analysis of the application of alternativeAlexander Decker
This document discusses alternative dispute resolution (ADR) techniques for banking disputes, with a focus on Nigeria and select countries. It begins by providing context on disputes in the banking industry, which can be between banks/customers, banks/regulators, and customers/regulators. The paper then defines ADR as processes outside formal litigation, like mediation and arbitration, to resolve disputes quickly and at low cost. It examines key ADR techniques used for financial disputes in countries like Italy, Germany, France, and the UK. The main ADR approaches in Nigeria - mediation, conciliation, and arbitration - are also overviewed in terms of their processes and applicable laws.
The document tells a story about a user who never wrote reviews and did not like to read them either. It describes a user who never contributed their own opinions in writing reviews. The story is told in a rhyming fashion.
This document summarizes the key features of the five classes of antibodies (immunoglobulins): IgG, IgM, IgA, IgD, and IgE. It describes their structure (monomer, dimer, pentamer), percentage in serum, locations, half-lives, ability to activate complement, placental transfer, and known functions such as enhancing phagocytosis, neutralizing pathogens, and mediating allergic reactions. IgG is the most abundant antibody and has subclasses with varying abilities to activate complement and bind Fc receptors. IgM is the first antibody produced during infection. IgA provides protection to mucosal surfaces. IgD and IgE have more specialized roles in initiating immune responses and allergies,
Cells of the immune system can be categorized as cells of the innate immune system or cells of the adaptive immune system. Cells of the innate immune system include phagocytes such as macrophages, neutrophils, dendritic cells, and basophils and mast cells. Cells of the adaptive immune system include lymphocytes such as B cells and T cells. B cells are involved in antibody production while T cells include cytotoxic T cells and helper T cells that activate other immune cells. Natural killer cells are also lymphocytes that help identify and destroy tumor or virus infected cells.
The document discusses the benefits of exercise for mental health. Regular physical activity can help reduce anxiety and depression and improve mood and cognitive function. Exercise causes chemical changes in the brain that may help protect against mental illness and improve symptoms.
This document summarizes 7 commonly consumed fermented foods, including their health benefits. Kombucha contains various microorganisms that support gut health. Sauerkraut has been shown to benefit brain health such as depression and anxiety. Pickles are a familiar gateway fermented food that many people enjoy and provide probiotics. Coconut yogurt is a dairy-free source of enzymes and probiotics. Miso is nutrient-dense and full of probiotics. Tempeh is a complete protein containing all essential amino acids. Kimchi can enhance digestion, boost energy, and improve skin health.
This document provides an introduction to immunology. It defines immunology as the study of the immune system and its functions in health and disease. The immune system recognizes, attacks, and remembers pathogens that enter the body using innate and adaptive defenses. Key events in immunology history are described, such as Edward Jenner's discovery of vaccination and the eradication of smallpox. Components of the immune system like antibodies, lymphocytes, and the complement system are introduced. The document also distinguishes between innate immunity, which provides non-specific defenses, and adaptive immunity, which has memory and specificity.
CONSTRUCTION Oct16 Wars Behind Closed Doors John Farage O'BrienJohn FFF O'Brien
The document discusses alternative dispute resolution (ADR) for commercial construction contract disputes in Ireland. It makes three key points:
1) ADR processes like arbitration, mediation, and conciliation all occur behind closed doors, maintaining confidentiality of proceedings and outcomes. This has both benefits and drawbacks for resolving disputes and industry learning.
2) The new adjudication process established in 2013 provides another option for resolving payment disputes, but it remains untested in Ireland and may face legal challenges regarding fairness.
3) Mediation and conciliation remain the best forums for construction dispute resolution if parties engage in good faith, but dispute prevention through robust project management is most important.
Top 5 Methods for Resolving UK Construction DisputesSarah Fox
According to the Arcadis Global Disputes Survey 2016, the average value of a construction dispute is near $46m and it takes over 16 months to resolve. This guide looks at your
five main options to resolve a dispute in the UK construction industry. It compares litigation (court proceedings), arbitration, adjudication, negotiation and mediation.
The author is Sarah Fox 500 Words Ltd and you can get regular tips for construction contracts to help you avoid disputes and the need for dispute resolution methods in her fortnightly tips sheet http://just500words.co.uk/signup.
This document discusses alternative dispute resolution (ADR). It defines arbitration and describes its advantages as being cheaper, faster, and allowing parties more control over the process compared to litigation. The document outlines different types of ADR like mediation, conciliation, and negotiation. It notes that ADR provides confidentiality, uses experienced neutral parties, and takes a cooperative approach. The document also discusses disadvantages like potential unequal bargaining power between parties and lack of precedent. Overall, it analyzes the pros and cons of using ADR to resolve disputes compared to traditional litigation.
The document provides an introduction to alternative dispute resolution (ADR). It defines ADR as any method of resolving disputes without litigation through processes outside of governmental authority. The main ADR methods discussed are arbitration, mediation, negotiation, and conciliation. Advantages of ADR include rapidity, confidentiality, flexibility, and cost savings compared to traditional litigation. Arbitration involves a neutral arbitrator rendering a binding decision, while mediation uses a neutral mediator to help parties reach their own agreement. Negotiation allows parties to directly settle disputes themselves without a third party. Conciliation employs a neutral conciliator to help parties resolve differences and bring about a negotiated settlement.
Here are the key points about conflict management and dispute resolution:
- Conflict and disputes are normal in human relationships and society. They can arise due to differences in interests, values or goals between parties.
- If not managed properly, conflicts can escalate and turn destructive, damaging relationships and causing psychological or physical harm. However, with effective resolution techniques, conflicts can also produce constructive outcomes where all parties feel satisfied.
- Different resolution methods exist along a continuum from cooperative to competitive. Cooperative techniques like negotiation, mediation and arbitration aim to find mutually agreeable solutions through compromise. Competitive methods like litigation aim to have one party win at the expense of others.
- The most constructive approach is usually cooperative resolution which
The document summarizes the Companies Tribunal Bulletin which discusses alternative dispute resolution services provided by the Tribunal as a simple, speedy and cost effective way to resolve company disputes. It provides an overview of how mediation, conciliation and arbitration works at the Tribunal and the benefits it provides over litigation. Examples of passing-off cases are also highlighted where the Tribunal found company names were confusingly similar and ordered a name change.
- The document summarizes an interview between Jamie Ritchie and Niall Lawless, an experienced Irish construction adjudicator, about adjudication in Ireland.
- In the interview, Lawless discusses some of the main differences between adjudication in the UK and Ireland, including that in Ireland it is limited to payment disputes. He also provides insight into typical adjudicator backgrounds and fees.
- Common grounds for challenging an adjudicator's decision that Lawless has seen include issues around jurisdiction and natural justice. He also notes some circumstances where an oral hearing in adjudication may be appropriate.
This document summarizes key findings from a research paper by Accuracy on cross-border M&A disputes. Some of the main points include:
- 57% of disputes analyzed were heard through private arbitration rather than traditional litigation.
- Almost a third of claims were for €10 million or less, while 15% were over €1 billion. Dispute amounts do not necessarily correlate with complexity.
- The majority of disputes arise due to surprises for the buyer after deal closing, such as unexpected costs or warranty breaches.
- Deals using a "locked box" purchase price mechanism, where the price does not change after signing, see far fewer disputes than deals using purchase price adjustments.
- Volatility in
A comparative legal analysis of the application of alternativeAlexander Decker
This document discusses alternative dispute resolution (ADR) techniques for banking disputes, with a focus on Nigeria and other countries. It begins by defining ADR as processes that resolve disputes outside of formal litigation, like mediation and arbitration. The document then examines various ADR techniques used for financial disputes in countries like Italy, Germany, France, and the UK. It provides an overview of ADR techniques recognized in Nigeria, including arbitration, conciliation, and mediation. The document also discusses other ADR options and analyzes what types of disputes can be referred to arbitration in Nigeria, such as matters involving property, contract breaches, and questions of law.
The document provides information on best practices for alternative dispute resolution (ADR). It discusses that ADR can help support court reform by providing alternatives to full legal proceedings. Different ADR options are described from facilitated negotiations to arbitration that resembles a courtroom process. The document also discusses how ADR methods like dispute boards have been incorporated into FIDIC construction contracts to allow for binding decisions on disputes prior to formal legal proceedings. Key aspects of employing dispute boards and their increasing focus on dispute avoidance are covered.
Basic Contract Law for PMs webinar Part 3:What to do when things go wrong or the unexpected happens
Tuesday 24 April 2018
APM Contracts and Procurement Specific Interest Group (SIG)
presented by Sarah Schütte, Schutte Consulting Limited
hosted by Dr Jon Broome, Contracts and Procurement SIG Deputy Chair
This document discusses mediation as an alternative dispute resolution method that can help reduce costs and save relationships compared to litigation. It notes that mediation can benefit the public sector by reducing legal costs from lawsuits, the private sector by resolving business disputes quicker than courts, communities by addressing disputes before they escalate, and families by repairing relationships during disputes. The document provides an overview of mediation, comparing it to other dispute resolution methods, and outlines some of its key features such as using an impartial mediator and allowing parties to control the outcome.
PROFESSIONAL OPPORTUNITIES FOR CHARTERED ACCOUTANT IN THE ALTERNATIVE DISPUTE...CA. (Dr.) Rajkumar Adukia
Chartered accountants have professional opportunities in alternative dispute resolution as dispute resolution providers. This document discusses several aspects of ADR in India relevant to such opportunities, including:
1. There is a statutory framework for ADR in India including sections of the Civil Procedure Code and the Arbitration and Conciliation Act.
2. Eligibility for dispute resolution providers is generally sound mind with accreditation needed for court/tribunal panels.
3. A wide range of disputes can be resolved through ADR, including commercial, labour, family, consumer and more. General guidelines are discussed for conducting dispute resolution online during the pandemic.
4. Understanding the nature and details of the dispute is emphasized
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
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This document discusses the future of law and alternative dispute resolution. It notes that technology is changing traditional legal services and introducing new competition. It describes alternative dispute resolution methods like arbitration and mediation that allow parties to settle disputes privately without courts. Online dispute resolution uses technology to facilitate resolving disputes online, particularly for commercial, consumer and other civil disputes. The key methods of online dispute resolution are arbitration, mediation and conciliation. The document outlines advantages like lower costs and ability to resolve international disputes remotely, as well as disadvantages like requiring internet access and lack of personal interaction.
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North london lsca_tax_mediation_seminar
1. Grant Jones LLM, Chartered Accountant, Solicitor, New
York Attorney, Licensed Insolvency Practitioner & Special
Professor of Laws, Nottingham University .
LinkedIn - http://uk.linkedin.com/in/accountantarbitrator
Webpage - http://www.gmjones.org/ To download the
slides, please go to
http://gmjones.org/accountantsinadr_hmrc.php
Acknowledgements - (a) HMRC website (b) Wikipedia (c)
Guardian (d) E & Y website (e) Staffs University (James
Torr). 1
E - gmjones@gmjones.org
2. the slides
2
There is no need to read the
detail of these slides. I will skip
you through these slides; death
will be avoided.
The purpose of the detail is so
you can take a considered look
at your convenience later.
3. 3
What is alternative dispute resolution (ADR) & why is it
important?
• ADR is non-court (including quasi-courts or tribunals)
dispute resolution.
• It is becoming increasingly important as stakeholders &
governments seek to reduce costs, & seek penalise
those that unnecessarily avoid ADR.
• For our (chartered accountants) purposes, ADR comes
in three types: Arbitration, Mediation & Expert
Determination.
• ADR is admirably suited to the chartered accountant.
4. 4
What is Arbitration?
'Arbitration, a form of ADR is a legal technique for the resolution of
disputes outside the courts, where the parties to a dispute refer it to
one or more persons (the "arbitrators", "arbiters" or "arbitral
tribunal"), by whose decision (the "award") they agree to be bound.
„It is a resolution technique in which a third party reviews the
evidence in the case & imposes a decision that is legally binding for
both sides & enforceable... Arbitration is often used for the
resolution of commercial disputes...Arbitration is a proceeding in
which a dispute is resolved by an impartial adjudicator whose
decision the parties to the dispute have agreed, or legislation has
decreed, will be final & binding‟.
There are limited rights of review & appeal of arbitration awards„.
5. 5
What is Mediation?
'Mediation, as used in law, is a form of ADR, a way of resolving disputes between
two or more parties with concrete effects. Typically, a third party, the
mediator, assists the parties to negotiate a settlement. Disputants may mediate
disputes in a variety of domains, such as
commercial, legal, diplomatic, workplace, community & family matters.
The term "mediation" broadly refers to any instance in which a third party helps
others reach agreement. More specifically, mediation has a structure, timetable &
dynamics that "ordinary" negotiation lacks. The process is private &
confidential, possibly enforced by law. Participation is typically voluntary. The
mediator acts as a neutral third party & facilitates, rather than directs the process.
Mediators use various techniques to open, or improve, dialogue between
disputants, aiming to help the parties reach an agreement. Much depends on the
mediator's skill & training. As the practice gained popularity, training
programs, certifications & licensing followed, producing trained, professional
mediators committed to the discipline.‟
6. 6
What is Expert Determination?
„Expert determination is a historically accepted form of dispute resolution
invoked when there isn't a formulated dispute in which the parties have
defined positions that need to be subjected to arbitration, but rather both
parties are in agreement that there is a need for an evaluation.
The practise itself is millennia old & well established where complex legal
institutions either have not developed, or are unavailable, such as tribal
societies & criminal organisations.
In the context of modern jurisprudence the word "expert" appears first in
Bottomley v Ambler ..., this was however used ambiguously also referring to
arbitrators having the qualification of expert. The first mention that
distinguishes specifically against the practise of arbitration, & introduces the
formula "as an expert & not as an arbitrator" was in Dean v. Prince 1953... In
Contract Law, the parties are free to include a forum selection clause
appointing a special referee to resolve specialised but disputed factual issues
between them.‟
7. 7
What does the ICAEW say?
„An expert determination is when an expert (such as a chartered
accountant) is appointed to decide points of disagreement between the
parties to a dispute. Typically an expert may be appointed to determine
(among other things): completion accounts, deferred considerations,
earnings before interest & tax valuation of shares.
The parties will need to agree to be bound by the determination as it
does not have the same enforceability as arbitration.
Arbitration involves processes that are similar to a more formal court
hearing but is held in private before an arbitrator. The arbitrator considers
the testimony of the parties & any evidence submitted by them & then
makes a binding decision that can be enforced just like a court
judgement.
The Arbitration Act 1996 provides for a fair, cost effective & fast
resolution of disputes & these are the fundamental principles that an
arbitrator must consider throughout the arbitration process‟.
8. 8
The new HMRC mediation scheme: what others say about it?
'HM Revenue & Customs is now offering mediation services for small
businesses. The tax authority is ready for mediation. Notwithstanding HMRC‟s
propensity to roll over & beg when the likes of Vodafone or Goldman Sachs
demand to pay less tax, its tough-talking officers are offering small & medium-
sized businesses the chance to put aside sharpened weapons before a fight
kicks off. Let's have a friendly discussion is the message.
Not nationwide. A pilot in north Wales will test the water. HMRC says mediation
will save time & money & a short study found "60% of disputes were either fully
or partially resolved". Unfortunately, the word independence is almost entirely
alien to the people at HMRC. There is an adjudicator who performs a watchdog
role. Except this watchdog is staffed entirely by HMRC inspectors &
administrators. Then there are the reviews of its practices that are conducted by
insiders or other civil servants. Client confidentiality is the barrier to any
discussion except by its own people, as the all-party public accounts committee
found to its annoyance last year.
9. 9
The new HMRC mediation scheme: what others say about it?
Now we are offered a dispute resolution service where "the facilitators are
HMRC members of staff who have been trained in ADR techniques & have
not been involved in the dispute".
"Alternative Dispute Resolution" is a well-trodden path in law & there will be
plenty of precedents for HMRC's specially trained team to use in its work.
But there is no hope the team will be independent.
Maybe the proposal is an extension of the softly-softly approach that
Goldmans & Vodafone enjoyed. Then again, it could be a response to the
calamitous cuts HMRC is suffering, with many inspectors performing the
duties of five redundant workers. Without the necessary staff to carry
through a well argued & robust tax claim on behalf of the exchequer,
HMRC is left pleading in a mediation room for a few crumbs.‟
TWO SCHEMES THOUGH?
10. 10
The new HMRC mediation scheme: what others say about it?
Geoff Lloyd, director in Ernst & Young‟s tax controversy team, commented
on the extension of HMRC‟s Alternative Dispute Resolution service...
"Alternative Dispute Resolution (ADR) has been remarkably successful in
resolving tax disputes of all shapes & sizes, avoiding the costs & delays to
both sides of going to court. The mediator - or HMRC facilitator in individual
& SME cases - can help both parties find a satisfactory basis for settlement
without either party losing control of the outcome. With almost 20,000
disputes in the queue for the Tax Tribunal, there's a need for a lot more ADR
than we've seen to date & opening up the process to individuals & SMEs
throughout the UK is a positive development. There's more to be done too
for large & complex cases. Only a handful of cases so far have been
resolved using mediation through the large business & complex case pilot.
While HMRC's aspiration of managing 50 of these disputes this year is a
good starting point, there is scope for bringing in mediators earlier & in more
cases, especially as the pilots have shown that ADR can lead to better &
faster outcomes all round."
11. 11
The new HMRC mediation scheme: what does HMRC say about it?
"DRAFT PRACTICAL GUIDANCE FOR HMRC STAFF ON THE USE OF ALTERNATIVE DISPUTE
RESOLUTION IN LARGE OR COMPLEX CASES“.
http://www.hmrc.gov.uk/practitioners/adr-draft-guidance.pdf
'In appropriate cases, HMRC considers that mediation can be used as a cost
effective, consensual & speedy means of supporting the resolution of tax disputes
(whether the dispute is ultimately resolved by agreement between the parties or
by litigation).
Mediation can be particularly useful in long-running disputes where positions on
both sides have become entrenched, or progress for whatever reason has
stalled. Mediation can help narrow down the areas of disagreement in one or
more component parts of a dispute by clarifying technical issues & identifying
points of difference whilst maintaining good working relationships between the
parties. For example, mediation could be useful in helping to clarify the key
questions which need to be answered in order to resolve the dispute (i.e.
agreeing a decision tree) or by narrowing the particular points in dispute in
preparation for litigation„.
12. 12
The new HMRC mediation scheme: what does HMRC say about it?
Mediation is a tool available to HMRC which may be of benefit in certain cases, subject to the criteria
& additional governance requirements described below.
Types of mediation:
(i) „Facilitative mediation‟ is a process in which the mediator tries to bring the parties
together but offers no opinion on the merits of the arguments being advanced. The mediator
may however put forward a neutral opinion as to how a dispute may play out in front of the
Tribunal. A facilitative mediator may or may not be a specialist in the subject matter of the
dispute.
(ii) „Evaluative mediation‟ is a process in which the mediator will try to bring the parties
together in exactly the same way as in facilitative mediation, but also providing his/her view
of the matter as a specialist.
It is possible to have a combination of the two approaches in which facilitative mediation is
attempted first, with evaluative mediation following if the initial approach is not successful'.
13. 13
The new HMRC mediation scheme: what does HMRC say
about it?
At what stage in a dispute should mediation be considered?
The stage at which a particular tax dispute may be suitable for
mediation will vary from case. Mediation can be considered either
before or after the issuing of a formal decision by HMRC.
Mediation is unlikely to be appropriate where any or all of the
following points apply:
The customer does not work with HMRC in a collaborative
manner or on the specific dispute has indicated that they do not
wish to try mediation.
It would be more efficient to have an issue judicially clarified
so that the precedent gained can be applied to other cases;
14. 14
The new HMRC mediation scheme: what does HMRC say
about it?
Resolution can only be achieved by departure from an
established „HMRC view‟ on a technical issue, & no
exceptional facts or circumstances exist to justify a
departure from the law or practice;
There is reason to suspect lack of integrity on the part of
the customer, whether or not criminal proceedings are
envisaged;
There is doubt over the veracity or strength of evidence
provided & HMRC wish to test it by cross-examination in a
public tribunal.
15. 15
So what is the mediation process?
„The parties are rarely familiar with the mediation process & it is helpful if the mediator issues a
paper outlining the procedure in advance of the mediation. The mediator should ask the parties to:
Send him a short written statement outlining how they consider the dispute has arisen;
their view of the dispute & what steps have been taken in attempting to resolve the
dispute.
Define for themselves the subject matter of the mediation.
Determine their own objectives, which will include a maximum or minimum
requirement. BATNA WATNA.
List the various facts that are helpful to their case & those likely to be raised by the
other party.
List the issues upon which the parties disagree.
Each party should assess their own position in respect of each issue & determine the
tactics for each.
Consider the needs of the other party. There is little point in pursuing something that
the other party is unable to provide.
Consider their strategies for the mediation.
16. 16
So what is the mediation process?
The mediator facilitates agreement between the parties by suggestion, advice,
persuasion, cajoling or any other means available to bring the parties together.
The mediator, having no power to impose a solution, can refuse to start a
mediation if he thinks the substance of the dispute is unsuitable for mediation. He
can refuse to continue when he believes that the parties cannot reach a solution
or are not seriously trying to reach a settlement.
The mediator can be removed by the parties at any time if they are dissatisfied
with the way in which he is conducting the mediation.
The mediator must endeavour to engender a "will to settle".
17. 17
So what is the mediation process?
The Mediator's role.
The Mediator's function is to act as a catalyst to enable the parties to resolve the
difficulties for themselves.
Parties may not be able to reach agreement by themselves for a number of reasons:-
o One or both of the parties have reached an entrenched position from which it is
difficult or impossible to retreat.
o The demands of one party are so excessive that no accommodation or
compromise appears possible.
o The demands a one party may be impossible for the other party to agree. It is for
the mediator to find some other solution that is acceptable.
o Personality clashes may have developed between the parties that make it hard for
them to communicate on any level of understanding.
o One party has taken a defensive position because of potential third-party
liabilities.
o Resolution of the problem is difficult because of departmental policies.
o There may be cultural problems, for example the fear of "losing face".
18. 18
So what is the mediation process?
Techniques for the mediator.
Establish exactly what the dispute is about: establish the reasons behind it; what
caused the inability to settle & what the parties actually require (this may not be what
they think they require).
Clarify the positions of the parties & translate them into terms that are clearly
understood by all.
Establish what is important & what is not to each of the parties; the priorities of
these various requirements & establish what is expendable.
Establish areas of overlap: help each side to a position of compromise.
Extend discussions into matters or proposals not previously considered.
Make suggestions to each party concerning alternative solutions.
Exert pressure for a solution to be reached.
Seek a "face-saving" formula where appropriate.
To be effective the mediator must gain & retain the confidence & respect of the
parties.
19. 19
So what is the mediation process?
Techniques for the mediator
Trust has to be established from the outset to enable the parties to deal frankly &
openly with the mediator. A successful mediation requires the parties to reveal to the
mediator their positions & the concessions that they are prepared to make.
The mediator should establish this trust by:-
o Explaining his role in the process.
o Demonstrating that he has the ability to listen to the parties & learn from them.
o Showing both impartiality & objectivity.
o Not making value judgements.
o Being firm but flexible when handling the meetings & ensuring that the
discussions are confined to what is relevant.
o Not showing hostility to any party's views or positions.
o Remembering that he is not a judge & is not able to decide between the parties
cases.
20. 20
So what is the mediation process?
Tips
Be objective: support both sides, even if privately you prefer one point of view.
Be supportive: use caring language. Provide a non-threatening learning
environment, where people will feel safe to open up.
Do not be judgemental: actively discourage judgements as to who was right & who
was wrong. Do not ask "Why did you?" Ask "What happened?" & "How did you feel?"
Steer process, not content. Use astute questioning. Encourage suggestions from
the Parties. Resist advising. If your suggestions are really needed, offer as options not
directives.
Win/Win: work towards wins for both Parties. Turn opponents into problem solving
partners.
Get agreement from both Parties about a basic willingness to solve the problem.
Let each Party say what the problem is for them. Check back that each Party has
actually understood the position of the other Party.
21. 21
So what is the mediation process?
Tips
Guide conversations towards a joint problem-solving approach & away from personal
attack.
Encourage Parties to look for answers where everybody gets what they need.
Reframe negative statements into a neutral description of a legitimate present concern.
Let the
mediation
commence.
22. 22
So what is the mediation process?
Procedure
The mediator (myself) introduces himself & ensures that all present are introduced to each
other.
The mediator (me) makes his opening statement.
The parties (Robert & Richard) make a short statement describing their views of the
dispute.
The mediator (myself) meets with each party separately in turn at a "caucus".
The mediator (myself) discusses with each party their respective views of the dispute,
trying to find out what is of real importance to each & to identify any areas of possible
resolution.
The mediator (myself) will move to & fro between the parties (Robert & Richard) trying out
different approaches & attempting to narrow the areas of disagreement in order to bring the
parties closer together.
When he (the mediator) believes that agreement can be reached, or for some other
reason it would be helpful, the mediator will bring the parties together again in joint session.
Once a solution has been reach the mediator (myself) will see that it is recorded in writing.
If a lawyer is present he should be invited to draft a formal agreement.
23. 23
The mediation has now begun.
OPENING STATEMENT BY MEDIATOR
Good Day
Are you are well & ready to begin?
I am Prof Grant Jones. As you are aware, I have been appointed to act as Mediator
in the dispute between you.
Well done by agreeing to this mediation, you have already reached the first stage of
potential agreement.
Before we begin perhaps it would be helpful to you if I explain a little of my
background.
I am, blah, blah, blah.
I am heavily involved in ADR: as an Arbitrator, Lecturer & Mediator. Mediation is
increasingly becoming the preferred method of dispute resolution & the large
majority of mediations reach a settlement. I see no reason why we should not
achieve a successful result today.
24. 24
The mediation has now begun.
TYPICAL OPENING STATEMENT BY MEDIATOR
Initially it would be useful if you would each introduce yourself by telling me who
you are & what your function is today.
I must confirm that you both have the necessary authority to reach a settlement
today? I will record that your confirmation of authority to conclude a settlement.
Probably no one has participated in a mediation before? So I’ll inform you of the
process & explain my role as mediator. In so doing, I may refer to written notes.
When people are unable to conclude an agreement themselves they may seek
outside help. This help can be ‘legal’ - arbitration or litigation - or by through an
independent person, a neutral person, to act as a go-between to guide them to an
acceptable solution. That is my function.
I have no power to impose upon you my solution, like an arbitrator or judge. I am
here as a catalyst to assist you to explore routes to agreement.
It’s to be your solution, not mine.
25. 25
The mediation has now begun.
TYPICAL OPENING STATEMENT BY MEDIATOR
You are free to leave whenever you are unhappy with the process. You will not commit
yourself howsoever unless you wish to do so.
Importantly today , this process is "without prejudice". That means that anything that is
said today cannot be used as evidence in any subsequent proceedings that may
occur, & therefore nothing that is said will affect your legal positions in any way should
we not be able to reach an agreement. Reference can not be made in any subsequent
proceedings to what is said during this mediation. Any rights with which you came into
this mediation will still be with you when you leave.
I have not met either of you before [or: I do of course know the HMRC staff in a
professional capacity.] & I have no personal interest in any settlement that we may
reach. I give you my solemn undertaking that anything that you tell me in these
proceedings I shall treat in complete confidence & I will not disclose anything that you
tell me to any other party without your express & explicit approval.
26. 26
The mediation has now begun.
TYPICAL OPENING STATEMENT BY MEDIATOR
I will shortly ask both of you to give me a brief dispute outline. Please do not
interrupt each other. There will be time for your alternative views later.
After your addresses I will speak to each of you privately in what, in mediation
jargon, we call a caucus. I shall go back & forth between you, classifying points &
exploring possibilities, until I think that we have the basis for an agreement.
I must stress that it is essential that in these discussions you speak frankly & openly
with me. Please remember that our conversations will be completely confidential.
At the end of the mediation I will destroy my notes & I will not voluntarily take part in
any future action that may occur between you on the matters that we shall now be
considering.
Perhaps I should point out that it is of no importance to whom I decide to speak first
& it is also of no significance how long I spend with each of you. That will depend
upon how the matter unfolds.
27. 27
The mediation has now begun.
TYPICAL OPENING STATEMENT BY MEDIATOR
I would also point out that if I nod at you that does not mean that I agree with the
point being made, but merely that I understand what you are telling me.
It is my normal practice that when I think we are in a position to reach an
agreement I shall call you together again, so that we can summarise the points of
agreement reached & decide how to finalise it.
When an agreement is reached I shall, if you wish, draft the agreement for you
both to sign before ending the mediation.
Robert, in accordance with the standard mediator’s procedure I invite you, as the
Claimant, to give your views first.
Now Richard, as the Respondent will you please give me your views.
Thank you gentlemen. I will now hold my first caucus with Robert, the Claimant.
Richard will you please return to your room. I shall hold my first caucus with you
in a few minutes time.
28. 28
The parties are now in mediation.
Please feel free to interrupt with comments throughout the process.
Grant Jones LLM.
Chartered Accountant, Solicitor, New York Attorney, Licensed Insolvency Practitioner & Special
Professor of Laws, Nottingham University .
LinkedIn - http://uk.linkedin.com/in/accountantarbitrator (To download the slides, please go
to the dropbox account on my LinkedIn page & to the CLSPG seminars folder & download
slides available on this page).
Acknowledgements - (a) HMRC website (b) Wikipedia (c) Guardian (d) E & Y website (e)
Staffs University (James Torr).
29. 29
The parties have now reached agreement.
The settlement agreement.
Obviously the terms of the
settlement agreement will vary
enormously depending upon the
nature of the dispute & indeed of
the settlement. However there
will be standard terms to any
settlement agreement. A
standard GMJ settlement
agreement is reproduced below -
30. 30
The parties are now drafting the settlement agreement.
Mediated settlement agreement (“the Agreement”).
Date
Mediants
(“Mediant A”).
[Address]
(“Mediant B”).
[Address] __________
(jointly “the Mediants”)
WHEREAS
The Mediants have agreed to settle certain matters in dispute ("the Dispute") as
between them which were previously subject to litigation or arbitration ("the Action").
The Dispute has been settled as more particularly described in this Agreement,
through mediation ("the Mediation"). The Mediation was conducted under the
auspices of the Mediation Body.
NOW
It is agreed as follows:
31. 31
The parties are now drafting the settlement agreement.
1 [A will deliver...............to B at.........by not later than........]
2 [B will pay £.........to A by no later than.......by telegraphic transfer to account
number.....in the name of........at the Bank of........, with sort code of........]
3a The Action will be stayed, the Mediants consenting to the Tomlin Order
reproduced as appendix 1.
OR
3b The Action will be discontinued with no claim or order for costs.
5 The Agreement is in full & final settlement of any & all matters in dispute or
controversy between the Mediants.
6 The Agreement overwrites any & all earlier agreements between the Mediants as
to the Dispute.
32. 32
The parties are now drafting the settlement
agreement.
If any dispute or controversy arises out of or in connection with the
Agreement, the Mediants will attempt to settle it by further mediation in
accordance with the [rules & procedures of the mediation body]. If the parties
are unable to agree a mediator, the mediator will be chosen & appointed by [the
mediation body].
8 The Mediants will ensure that this Agreement arising out of or
otherwise connected with the Mediation (unless otherwise required by any
competent, relevant legal or regulatory authority, or auditors or insurance
provider, or to enforce any settlement agreement) remains confidential.
9 The Mediants submit this Agreement & any matter arising out of it or
otherwise in connection with it, save for any matter concerned with the
European Convention of Human Rights, to the exclusive jurisdiction of the
courts of England & Wales.
Signed, etc
33. 33
The parties are now drafting the settlement
agreement.
Draft Tomlin Order
[Action heading]
UPON hearing …..
By consent
IT IS ORDERED that all further proceedings in this case be stayed upon the terms
set out in the Agreement between the Mediants dated ….., an original of which is held
by each of the Mediants‟ solicitors.
& IT IS FURTHER ORDERED that either Mediant/any of the Mediants may apply to
the court to enforce the terms of the said Agreement [or to claim for breach of it]
without the need to commence new proceedings.
& IT IS FURTHER ORDERED that [each Mediant bear its own costs].
WE CONSENT to an order in these terms
................................ [Conciliator LLP] Solicitors for [Mediant A].
................................. [Co-Operative LLP] Solicitors for
34. 34
The party has now concluded.
Conclusion
The core question facing any mediator, particularly a mediator who is not legally qualified, is 'to what
extent can or should he draft the settlement agreement'? Do you feel comfortable with a non-lawyer
drafting a settlement agreement?
Grant Jones LLM.
Chartered Accountant, Solicitor, New York Attorney, Licensed Insolvency Practitioner & Special
Professor of Laws, Nottingham University .
LinkedIn - http://uk.linkedin.com/in/accountantarbitrator
Website - http://www.gmjones.org/ To download the slides, please go to
http://gmjones.org/accountantsinadr_hmrc.php
Acknowledgements - (a) HMRC website (b) Wikipedia (c) Guardian (d) E & Y website (e) Staffs
University (James Torr) (f) „Are you being served?‟
You’ve all done very well.
Thank you, especially to Robert (who
provided the dispute) & Richard.
Prof Grant Jones.