ACIArb (Intro to ADR) cheat sheet

ADR spectrum orders processes by third-party control: negotiation (party-controlled) → mediation/conciliation (facilitated) → early neutral evaluation (advisory) → expert determination (binding on technical issues) → arbitration (binding adjudication) → litigation (state adjudication).

Key differentiators: binding vs non-binding outcome; consensual vs imposed decision; formal vs informal procedure; public vs private; enforceable vs unenforceable (arbitral awards enforceable under New York Convention; mediated settlements enforceable only if converted to contract or consent award).

Negotiation produces a contract; mediation produces a settlement agreement; conciliation produces a proposal that may become a settlement; ENE produces a non-binding assessment; expert determination produces a binding determination on defined issues; arbitration produces an enforceable award.

Rights-based vs interest-based processes: litigation and arbitration determine legal rights; mediation and conciliation focus on underlying interests; ENE and expert determination evaluate positions on facts or law.

Tiered dispute resolution clauses (negotiation → mediation → arbitration) are enforceable in many jurisdictions but enforceability of the obligation to mediate varies; failure to comply may be a breach of contract or a condition precedent to arbitration.

Adjudication (statutory, e.g. UK Housing Grants, Construction and Regeneration Act 1996) gives a temporarily binding decision enforceable pending final arbitration or litigation.

Dispute boards (DB, DAB, DRB) provide ongoing, non-binding or binding recommendations during a project; decisions are typically enforceable as contract terms and admissible in later proceedings.

Online Dispute Resolution (ODR) uses technology to facilitate negotiation, mediation, or arbitration remotely; it raises issues of identity, confidentiality, enforceability, and cross-border data protection.

Choice criteria: cost, speed, confidentiality, expertise, enforceability, relationship preservation, precedent value, and scope of discovery.

Distributive bargaining (zero-sum) vs integrative bargaining (value-creating): distributive focuses on claiming value; integrative focuses on expanding the pie through trades on differing priorities.

BATNA (Best Alternative To a Negotiated Agreement) defines the reservation point; a deal is acceptable only if it is better than the BATNA. ZOPA (Zone of Possible Agreement) exists when the parties' reservation points overlap.

Positional vs interest-based negotiation (Fisher & Ury): positions are what parties say they want; interests are why they want it. Focus on interests to generate options.

Principled negotiation four elements: separate the people from the problem; focus on interests, not positions; invent options for mutual gain; insist on objective criteria.

Negotiation styles: competitive (claiming), collaborative (problem-solving), compromising, accommodating, avoiding (Thomas-Kilmann model). Style choice depends on stakes, relationship, time, and power.

Anchoring, framing, and first-offer effects influence outcomes; making the first offer can anchor the negotiation but may reveal information.

Logrolling trades issues of different value to each party; issue linkage and package deals create integrative potential.

Impasse management: use objective criteria, expand the pie, bring in a mediator, or revisit BATNA. Threats and warnings differ: threats are self-inflicted costs; warnings are consequences outside the threatener's control.

Ethical limits: misrepresentation of material facts may be actionable; puffery and positional bargaining are generally permitted, but fraud vitiates consent.

Mediation models: facilitative (mediator facilitates communication, does not evaluate); evaluative (mediator offers assessments of strengths/weaknesses); transformative (focus on empowerment and recognition); narrative (deconstructs conflict stories).

Typical mediation process: agreement to mediate; appointment of mediator; preliminary meeting; joint session; private caucuses; negotiation; settlement agreement; closure.

Mediator's role: impartial facilitator, not decision-maker; may caucus, reality-test, and help parties generate options; must not give legal advice unless qualified and agreed.

Confidentiality: mediation communications are generally confidential and often inadmissible in later proceedings (e.g. without-prejudice rule, statutory mediation privilege). Exceptions: threats, criminal conduct, child protection, fraud.

Mediator's duties: disclose conflicts of interest; ensure informed consent; maintain impartiality; manage power imbalances; uphold self-determination; avoid coercion.

Settlement agreement is a contract; enforceability depends on contract law. In some jurisdictions it can be converted into a consent award or enforceable instrument (e.g. EU Mediation Directive 2008/52/EC).

Mediation-Arbitration (Med-Arb): same neutral mediates then arbitrates if no settlement; confidentiality and due process concerns arise if the arbitrator uses caucus information.

Voluntariness: participation and outcome should be voluntary; courts may order parties to attend mediation but cannot compel settlement.

Indicators for mediation: ongoing relationship, multiple issues, emotional components, confidentiality needs, and desire to preserve control over outcome.

Conciliation: a third party (conciliator) assists parties to reach settlement; conciliator may propose terms, unlike a facilitative mediator. Conciliation is often used in investor-state and construction disputes.

Conciliator's role: active, may suggest solutions; must remain impartial and disclose conflicts; process is confidential and non-binding unless settlement is reached.

UNCITRAL Conciliation Rules (1980) provide a model procedure; the 2018 Singapore Mediation Convention (Singapore Convention) facilitates enforcement of mediated settlement agreements internationally.

Early Neutral Evaluation (ENE): a neutral (often a senior lawyer or former judge) gives a non-binding assessment of the merits, liability, or quantum early in the dispute to encourage settlement.

ENE is typically confidential and without prejudice; the evaluator's opinion is not binding and not admissible in later proceedings.

ENE differs from mediation: evaluative focus on merits; from expert determination: non-binding; from arbitration: no award.

ENE can be court-annexed or private; used in construction, insurance, and commercial disputes to narrow issues and reduce discovery.

Conciliation vs mediation: terminology varies by jurisdiction; conciliation often implies a more active third party who may propose solutions.

Both processes preserve party autonomy and are generally cheaper and faster than arbitration or litigation.

Arbitration agreement: must be in writing (Model Law Art. 7); can be a clause or separate agreement; separable from main contract (doctrine of separability); may be governed by a different law.

Validity requirements: capacity, consent, arbitrability (subject matter must be arbitrable), and form. Defective clauses (pathological clauses) may be cured by interpretation or institutional rules.

Tribunal composition: sole arbitrator or panel (often three); party autonomy to agree appointment; institutional appointment if parties fail; challenge for lack of independence or impartiality (IBA Guidelines on Conflicts of Interest).

Procedure: party autonomy and tribunal discretion; due process (equal treatment, right to be heard); document production (IBA Rules on Taking of Evidence); hearings; expert evidence; interim measures.

Seat of arbitration determines procedural law and court supervision; venue is where hearings occur; governing law of contract may differ.

Award: final and binding; must be in writing and signed; reasons usually required unless parties agree otherwise; types: final, partial, interim, consent, default.

Setting aside: limited grounds under Model Law Art. 34 (e.g. incapacity, invalid agreement, lack of notice, excess of authority, irregular composition, non-arbitrability, public policy).

Enforcement: New York Convention Art. V grounds for refusal; awards enforceable in 170+ states; no review of merits.

Costs: tribunal may allocate costs; third-party funding disclosure requirements increasingly common.

Statutory adjudication: UK Housing Grants, Construction and Regeneration Act 1996 (as amended 2011) gives a right to adjudicate construction contracts; decision binding until final determination by arbitration/litigation; 28-day default timetable.

Adjudication is typically faster and cheaper than arbitration; adjudicator's decision enforceable by summary judgment; no appeal on merits.

Expert determination: parties appoint an expert to decide a defined technical or valuation issue; decision is final and binding if the agreement so provides; limited grounds to challenge (fraud, bias, excess of jurisdiction).

Expert determination is not arbitration; no statutory framework; enforcement as a contract debt; no New York Convention enforcement.

Dispute boards: standing (DB) or ad hoc (DAB); typically three members; issue recommendations or decisions during project; decisions binding if contract so provides; enforceable as contract terms.

FIDIC contracts (1999/2017) provide for DABs; 2017 FIDIC requires DAB decision as condition precedent to arbitration (with exceptions).

ODR: online negotiation, mediation, and arbitration platforms; UNCITRAL Technical Notes on ODR (2016); issues of cross-border enforcement, data privacy, and digital identity.

ODR can be integrated into court systems (e.g. online courts) or private platforms; suitable for low-value, high-volume disputes.

Combined processes: Med-Arb, Arb-Med, and hybrid dispute boards with mediation functions.

New York Convention 1958: 170+ contracting states; requires recognition and enforcement of foreign arbitral awards; grounds for refusal in Art. V (limited).

NY Convention Art. II: recognizes written arbitration agreements and requires courts to refer parties to arbitration unless agreement is null and void, inoperative, or incapable of being performed.

UNCITRAL Model Law on International Commercial Arbitration 1985 (amended 2006): model for national arbitration statutes; covers agreement, tribunal, procedure, award, setting aside, enforcement.

Model Law key articles: Art. 7 (form of agreement), Art. 8 (referral to arbitration), Art. 11 (appointment), Art. 16 (competence-competence), Art. 34 (setting aside), Art. 36 (enforcement).

Institutional rules: ICC Rules (2021), LCIA Rules (2020), SIAC Rules (2016), HKIAC Rules (2018), AAA/ICDR Rules, UNCITRAL Arbitration Rules (2010, 2013).

Institutional vs ad hoc arbitration: institutions provide administration, appointment, scrutiny of awards, and fee schedules; ad hoc relies on parties and national courts.

ICC Rules: scrutiny of awards, terms of reference, advance on costs; LCIA: light-touch administration, hourly fees; SIAC: expedited procedure, emergency arbitrator.

Emergency arbitrator provisions: available under many institutional rules (ICC, SIAC, HKIAC, LCIA) to grant interim relief before tribunal constitution.

Singapore Mediation Convention 2018: international framework for enforcement of mediated settlement agreements; applies to commercial disputes; reservations possible.

IBA Guidelines and Rules: Conflicts of Interest (2014), Rules on Taking of Evidence (2020), Rules on Party Representation (2013).

Impartiality: absence of bias or prejudice; independence: absence of relationship with parties or counsel. Both are required of arbitrators and mediators; disclosure is ongoing.

Disclosure duty: arbitrators must disclose circumstances likely to give rise to justifiable doubts as to independence or impartiality (IBA Guidelines, Model Law Art. 12).

Confidentiality: arbitration is private but not automatically confidential; institutional rules (e.g. ICC Art. 22, LCIA Art. 30) impose confidentiality; exceptions for enforcement, court challenges, and legal duty.

Mediation confidentiality: protected by agreement, institutional rules, and statute (e.g. EU Mediation Directive, US Uniform Mediation Act); exceptions for threats, criminal conduct, and fraud.

Conflict of interest: mediators and arbitrators must decline appointment or resign if conflict arises; failure to disclose may lead to challenge or setting aside of award.

Party autonomy and due process: equal treatment and right to be heard are fundamental; breach may render award unenforceable (public policy).

Ethical duties of counsel: candour, avoiding harassment, not misleading the tribunal; IBA Rules on Party Representation (2013) address counsel conduct.

Third-party funding: disclosure of funding arrangements may be required; conflicts may arise if funder has relationship with arbitrator.

Professional conduct for mediators: self-determination, impartiality, competence, confidentiality, and avoiding conflicts of interest (e.g. IMI Code of Conduct).