ADR Core Module cheat sheet

ADR covers processes outside ordinary litigation: negotiation, mediation, conciliation, arbitration, adjudication, expert determination, and ODR.

Core ADR design variables are: who decides (parties, neutral, or tribunal), whether the outcome is binding, whether procedure is formal, and whether the process is confidential.

Spectrum ordering by party control: negotiation > mediation/conciliation > expert determination > adjudication > arbitration > litigation.

ADR is consensual at entry unless a statute, court rule, or contract clause compels participation; arbitration requires consent, mediation does not.

Interest-based processes (mediation) target underlying needs; rights-based processes (arbitration, adjudication) apply rules and entitlements.

ADR advantages commonly cited: speed, cost control, confidentiality, neutrality of forum, expertise of the neutral, and preservation of relationships.

ADR limits: no coercive enforcement without a legal mechanism, limited precedential value, possible power imbalance, and restricted appeal rights.

Distinguish facilitative (mediation), evaluative (expert determination, early neutral evaluation), and adjudicative (arbitration, adjudication) third-party roles.

The New York Convention (1958) requires recognition and enforcement of foreign arbitral awards among contracting states, subject to limited grounds in Article V.

The UNCITRAL Model Law on International Commercial Arbitration (1985, amended 2006) supplies the template for most national arbitration statutes.

The UNCITRAL Conciliation Rules (1980) and Model Law on International Commercial Conciliation (2002) govern cross-border conciliation.

The Singapore Convention on Mediation (2019) provides enforcement of cross-border mediated settlement agreements, with reservations permitted.

Arbitrability is set by national law and public policy; typical exclusions include criminal matters, family status, and some consumer or employment disputes.

Mandatory statutory rules (due process, equal treatment, tribunal independence) override contrary party agreement in most Model Law jurisdictions.

Policy goals of ADR law: party autonomy, finality, procedural efficiency, and reducing court congestion.

Choice-of-law analysis in ADR distinguishes the law governing the arbitration agreement, the arbitral procedure, the substantive contract, and enforcement of the award.

BATNA = best alternative to a negotiated agreement; the BATNA sets the walk-away point and the source of negotiating power.

Reservation value is the least favorable acceptable outcome; ZOPA exists only where the parties' reservation values overlap.

Distributive (positional) bargaining claims value from a fixed pie; integrative bargaining creates value by trading on differing priorities.

Interests vs positions: positions are stated demands; interests are underlying needs, fears, and priorities that generate them.

Fisher/Ury principled negotiation: separate people from the problem, focus on interests, generate options, use objective criteria.

The negotiation planning sequence: identify interests, rank priorities, estimate the counterparty's BATNA, compute reservation value, define the ZOPA.

Anchoring, reactive devaluation, and framing effects are systematic biases that shift negotiated outcomes independent of objective merit.

Multi-party and multi-issue negotiations require issue linkage, logrolling, and coalition analysis; the negotiator's dilemma describes tension between cooperation and claiming.

Typical stages: intake/agreement to mediate, opening statements, information exchange, joint exploration, private caucuses, option generation, negotiation, settlement, and closure.

Mediation is facilitative when the mediator manages process only; evaluative when the mediator offers views on merits, risk, or likely outcomes.

The mediator's opening statement typically covers voluntariness, confidentiality, the mediator's role, process structure, and authority to settle.

Caucus (shuttle) sessions are private meetings with one party; information is not shared with the other side without permission.

A mediation agreement to mediate should address confidentiality, authority of representatives, mediator fees, and the effect on limitation periods.

A settlement reached in mediation is a contract; enforceability depends on form (signed writing) and any applicable statute or convention.

Co-mediation, med-arb, and arb-med are hybrids; med-arb raises due process concerns because the mediator may later adjudicate.

Impasse management tools include reframing, reality testing, single-text drafting, splitting issues, and shifting from positions to interests.

A valid arbitration agreement requires consent, capacity, a defined legal relationship, and a dispute capable of settlement by arbitration.

The arbitration agreement is separable; invalidity of the main contract does not automatically invalidate the arbitration clause.

Competence-competence lets the tribunal rule on its own jurisdiction, including objections to the existence or validity of the agreement.

Tribunal constitution: sole arbitrator or three-member panel; party-appointed arbitrators in three-member panels are common in international practice.

Grounds for challenge of an arbitrator typically include justifiable doubts about independence or impartiality and lack of agreed qualifications.

Procedural principles: equal treatment of parties, each party a full opportunity to present its case, and party autonomy over procedure subject to mandatory rules.

Interim measures may be ordered by the tribunal or by a national court; tribunal-ordered measures usually need court enforcement.

Seat (legal place) of arbitration determines the supervisory court and procedural law; it is distinct from the venue of hearings.

Award types: final, partial, interim, consent, and default awards; a consent award records a settlement and is enforceable as an award.

A valid award must be in writing, signed by the tribunal, state reasons unless otherwise agreed, and be dated and place-designated.

Setting aside (annulment) is available only at the seat, on limited Model Law grounds such as lack of jurisdiction, due process breach, or public policy.

New York Convention Article V grounds include incapacity, invalid agreement, lack of notice, excess of authority, irregular composition, non-arbitrability, and public policy.

Article V defenses are construed narrowly; error of law or fact is not a ground for refusal of enforcement.

Time limits for setting aside are short and set by the seat's law; enforcement may be refused while a set-aside application is pending.

Recognition and enforcement procedure: supply authenticated award and original or certified arbitration agreement, in a Convention language.

Refusal grounds under the Singapore Convention for mediated settlements include fraud, mediator misconduct, and public policy.

Conciliation resembles mediation but the conciliator may take a more active role, proposing terms; UNCITRAL Conciliation Rules govern international use.

Adjudication (e.g., statutory construction adjudication) produces a temporarily binding decision enforceable pending final arbitration or litigation.

Expert determination is a contractual process where a named expert decides a technical issue; the decision is binding only if the contract says so.

Distinguish expert determination from arbitration: no statutory enforcement regime, limited due process duties, and narrower grounds of challenge.

Early neutral evaluation gives parties a non-binding assessment of the merits by an experienced neutral, usually to inform settlement.

ODR uses technology for dispute resolution, including asynchronous platforms, online mediation, and automated negotiation; due process and identity verification are key concerns.

ODR enforceability depends on the underlying process: an ODR arbitration award is enforceable under the New York Convention if the formal requirements are met.

Hybrid design choices: mediation-arbitration, arb-med, and dispute review boards combine processes with different finality and enforceability characteristics.

Core ethical duties for neutrals: independence, impartiality, competence, confidentiality, and disclosure of conflicts.

Independence concerns relationships and interests; impartiality concerns bias or predisposition toward a party or outcome.

The duty to disclose is continuing; a neutral must disclose facts that may create justifiable doubts as to independence or impartiality.

Party-appointed arbitrators may be predisposed to the appointing party but must remain impartial and independent under most institutional rules.

Confidentiality in mediation is protected by mediation privilege statutes and agreement; exceptions include threats of harm, fraud, and mandatory reporting.

Ethical limits include no ex parte communication in arbitration, no fee arrangements contingent on outcome, and no accepting gifts that create dependency.

Informed consent requires the parties to understand the process, its confidentiality, and the neutral's role before proceeding.

Professional conduct rules also cover advertising, competence, record-keeping, and handling of conflicts when a neutral is also a witness or advocate.

A valid arbitration clause should specify: scope of disputes, seat, number of arbitrators, language, governing law of the clause, and institutional rules.

Avoid pathological clauses: inconsistent institution names, ambiguous seat, optional arbitration language, and conflicting dispute resolution steps.

Multi-tier clauses (negotiation then mediation then arbitration) should specify time limits and whether steps are conditions precedent.

The mediation clause should define the process, the appointment mechanism, confidentiality, costs, and the effect on limitation periods.

A settlement agreement should record the parties, the obligations, the payment terms, the release, confidentiality, and the enforcement mechanism.

For enforceability as a mediated settlement under the Singapore Convention, ensure the agreement is in writing, signed, and identifies the mediation.

Choice-of-law and forum clauses should be consistent across the main contract, the arbitration clause, and any related security documents.

Drafting for enforceability: name the institution and rules precisely, confirm the seat, and include an express waiver of immunity where a state entity is involved.

A valid arbitration clause should specify: scope of disputes, seat, number of arbitrators, language, governing law of the clause, and institutional rules.

Avoid pathological clauses: inconsistent institution names, ambiguous seat, optional arbitration language, and conflicting dispute resolution steps.

Multi-tier clauses (negotiation then mediation then arbitration) should specify time limits and whether steps are conditions precedent.

The mediation clause should define the process, the appointment mechanism, confidentiality, costs, and the effect on limitation periods.

A settlement agreement should record the parties, the obligations, the payment terms, the release, confidentiality, and the enforcement mechanism.

For enforceability as a mediated settlement under the Singapore Convention, ensure the agreement is in writing, signed, and identifies the mediation.

Choice-of-law and forum clauses should be consistent across the main contract, the arbitration clause, and any related security documents.

Drafting for enforceability: name the institution and rules precisely, confirm the seat, and include an express waiver of immunity where a state entity is involved.