ACIArb (Intro to ADR) common mistakes
ACIArb (Intro to ADR) · Understand the traps and how to avoid them.
When asked to classify a process, the candidate labels anything with a neutral third party as 'mediation', so conciliation, early neutral evaluation and expert determination are all collapsed into mediation.
The candidate memorises process names as a list without learning the distinguishing variables: whether the neutral gives an opinion, whether it is binding, whether it is evaluative or facilitative, and whether the parties retain control of the outcome.
What to do instead
Build a comparison grid with columns for who decides the outcome, whether the neutral evaluates the merits, whether the result is binding, and whether it is consensual or court-referred. Place mediation, conciliation, ENE, expert determination and adjudication on it, and rehearse explaining the difference to a client in two sentences each.
The candidate describes the ADR spectrum as a simple line from negotiation to litigation and treats arbitration as 'the next step up from mediation', ignoring hybrid and non-binding processes.
Popular summaries present ADR as a ladder. The candidate does not appreciate that mediation and arbitration sit on different axes (outcome control versus third-party determination) and that processes such as med-arb, arb-med, dispute boards and ODR do not fit a single ladder.
What to do instead
Learn the spectrum as two dimensions: party autonomy over outcome versus third-party determination, and consensual versus binding. Then position each process as a coordinate on that grid and practise explaining why med-arb raises distinct confidentiality and impartiality concerns.
The candidate treats negotiation styles as personality labels ('I am a competitive negotiator') and cannot apply distributive versus integrative strategy to a concrete scenario.
Negotiation theory is studied as vocabulary rather than as a toolkit. Candidates memorise 'positional' and 'interest-based' but never practise identifying interests behind positions or choosing a strategy from the facts given.
What to do instead
For each practice scenario, write down both parties' positions, the underlying interests, each side's best alternative to a negotiated agreement, and the zone of possible agreement. Then state which strategy fits and why. This forces the theory to be used rather than recited.
The candidate describes the mediation process as a fixed sequence of joint session, private caucuses and settlement, and cannot adapt when asked what the mediator does if talks stall or a party refuses to attend.
Model answers are learned as a script. The candidate has not internalised the purpose of each stage (information gathering, interest identification, option generation, reality testing, closure) and so cannot diagnose why a stage is failing.
What to do instead
Learn each stage by its objective and its failure symptoms. Practise answering 'what would you do next if...' questions: parties deadlocked, a party posturing in joint session, an impasse in caucus, a settlement that ignores a non-party interest. Name the technique and the reason.
The candidate describes the mediator's role as giving legal advice or predicting the outcome, and conflates facilitative, evaluative and transformative models.
The models are memorised by name without their defining features. The candidate does not know that evaluative mediation permits merits opinions with party consent, that transformative mediation focuses on empowerment and recognition, and that giving legal advice may exceed the role and create liability or impartiality issues.
What to do instead
For each model, write one line on the mediator's interventions, the theory of change, and the main criticism. Then practise classifying sample mediator statements ('What would a court say about this clause?' versus 'What would help you feel heard?') into the correct model.
The candidate answers questions on the arbitration agreement by reciting 'it must be in writing' without addressing separable arbitration clauses, the competence-competence principle, governing law of the clause, or who decides jurisdictional challenges.
The arbitration agreement is studied only as a formality. Candidates miss that the doctrine of separability and competence-competence determine whether the tribunal or a court rules on jurisdiction, and that the law governing the clause may differ from the law governing the contract.
What to do instead
Study the arbitration agreement under four headings: form and validity, separability, competence-competence and its limits, and governing law. For each, prepare a short answer explaining what happens when a party challenges jurisdiction before the tribunal and before a court.
The candidate describes the arbitral tribunal's powers and the award without distinguishing institutional rules from the lex arbitri, or without stating the grounds on which an award may be set aside or refused enforcement.
Procedure is learned as a narrative of 'appointment, hearing, award'. The candidate does not separate what the institution administers, what the seat's law permits, and what the New York Convention requires, so answers blur the three layers.
What to do instead
For any procedural question, answer in three layers: what the institutional rules provide, what the law of the seat requires or permits, and what the New York Convention requires for recognition and enforcement. Learn the exhaustive grounds for refusal under Article V by category, not by memorised list.
The candidate treats adjudication, expert determination and dispute boards as interchangeable, and cannot state whether the decision is binding, interim or final, or how it is enforced.
These processes are covered briefly and the candidate relies on the general idea of a 'neutral deciding'. The distinctions turn on contractual finality, provisional binding effect pending arbitration, and the limited grounds for challenging a decision.
What to do instead
Learn each by three facts: who decides, what the decision binds the parties to, and how it is enforced or challenged. For dispute boards, add the distinction between a standing board and an ad hoc board, and how a 'binding but not final' decision interacts with a later arbitration.
The candidate answers confidentiality questions by asserting that 'mediation and arbitration are confidential' without identifying the source of the duty, its exceptions, or the difference between confidentiality and privacy of the hearing.
Confidentiality is treated as a slogan. Candidates do not know that the duty may arise from agreement, institutional rules, the law of the seat or the mediator's contract, and they overlook exceptions such as illegality, threats, and disclosure required by law or to enforce a settlement.
What to do instead
For each process, identify the legal and contractual sources of confidentiality, then list the recognised exceptions. Practise distinguishing privacy (who may attend the hearing) from confidentiality (what may be disclosed afterwards), and note how the New York Convention and institutional rules treat publication of awards.
The candidate handles impartiality and independence by saying the arbitrator or mediator must be 'neutral', without addressing the duty of disclosure, the test applied to conflicts, or the consequences of failing to disclose.
Ethics is studied as a list of virtues. Candidates do not connect disclosure obligations to institutional rules and the law of the seat, and cannot explain the objective test of justifiable doubts as to independence or impartiality.
What to do instead
Learn the disclosure duty as a continuing obligation, the objective test applied to challenges, the difference between independence (relationships) and impartiality (state of mind), and the remedies for non-disclosure: challenge, removal, set-aside and refusal of enforcement. Apply it to short fact patterns involving prior appointments, financial interests and repeat instructions.