ADR Core Module common mistakes
ADR Core Module · Understand the traps and how to avoid them.
Treating arbitration and mediation as interchangeable dispute-resolution methods, so answers describe a neutral 'deciding' or 'facilitating' without distinguishing who controls the outcome.
Candidates learn ADR as one umbrella and skim the taxonomy, then apply the wrong procedural logic to scenario questions that hinge on consensual versus adjudicative outcomes.
What to do instead
Build a two-axis map before revising: axis one is consensual versus adjudicative (who decides), axis two is binding versus non-binding. Place arbitration, mediation, conciliation, adjudication, expert determination and ODR on it, and for each scenario question first ask 'who determines the outcome and is it binding?' before choosing an answer.
Citing the New York Convention or UNCITRAL Model Law as if they were directly binding domestic law in every jurisdiction, without checking whether the state has implemented them.
These instruments are widely taught as foundational, and candidates conflate an international treaty or model text with self-executing domestic statute.
What to do instead
For every legal-framework answer, state the chain explicitly: treaty obligation, implementing statute, then case law. Note that the Model Law is a template with no force until enacted, and that Convention enforcement operates only between contracting states and through domestic courts. Practise phrasing 'as implemented in [jurisdiction]' rather than treating the text as directly applicable.
Describing negotiation styles only by label ('integrative', 'distributive') without linking the label to the underlying interests, positions, and the resulting move in the scenario.
Style vocabulary is easy to memorise and candidates reproduce definitions instead of applying them to the facts, which scenario questions penalise.
What to do instead
For each negotiation question, write one line identifying each party's position (what they say they want) and interest (why), then predict the move that follows. Practise converting a stated demand into the underlying interest and naming the tactic (logrolling, bridging, anchoring) that exploits it.
Skipping the procedural preconditions of mediation, such as confirming consent to mediate, agreeing the mediator's role, and establishing confidentiality arrangements before the first session.
Candidates focus on the mediation dialogue itself and treat process setup as administrative detail, so they miss questions that turn on enforceability or confidentiality.
What to do instead
Memorise a mediation checklist in sequence: agreement to mediate, appointment and disclosure, confidentiality and privilege terms, opening session, information exchange, option generation, separate sessions, settlement documentation. For any process question, locate the scenario at a stage on that checklist and answer within that stage's rules.
Assuming an arbitration clause in a contract automatically captures tort claims, pre-contractual misrepresentation, or disputes under related contracts, without analysing the clause's scope.
Candidates read 'all disputes arising out of this contract' as unlimited and ignore the distinction between disputes arising 'out of' and 'in connection with' the contract.
What to do instead
For every agreement question, quote the operative scope words and test them against the claim: does the claim arise under, out of, or in connection with the contract, and is it a non-arbitrable subject in the seat? Draft two versions of the clause, narrow and broad, and note which claims each captures.
Conflating setting aside at the seat with resisting enforcement elsewhere, and listing the same grounds for both without noting their different scope and timing.
Both routes invoke similar language in the New York Convention, and candidates memorise one list of grounds and apply it to both procedures.
What to do instead
Draw a two-column table: challenge at the seat (before the supervising court, time-limited, may lead to annulment) versus resistance to enforcement (before the enforcing court, discretionary, may lead to refusal or adjournment). Note that the enforcing court may apply a more limited review and that a set-aside decision in one state does not automatically bind another.
Treating expert determination as if it were arbitration, so answers assume enforceable awards, due process rights, and limited appeal.
Both involve a neutral third party receiving submissions and issuing a decision, and the superficial similarity leads candidates to import arbitration rules wholesale.
What to do instead
Memorise the distinguishing features: expert determination is contractual, the expert decides on the basis agreed (often 'the expert's opinion'), the decision binds only as a matter of contract, and challenge is generally confined to fraud, collusion, or manifest error depending on the clause. For any 'other process' question, state the source of the decision's binding force before discussing remedies.
Answering ethics questions by asserting that a neutral must be 'impartial and independent' without identifying the specific duty engaged, the disclosure obligation, and the consequence of breach.
The phrase is a slogan candidates repeat, and scenario questions reward naming the duty and the procedural step rather than reciting the principle.
What to do instead
Learn the ethics questions as a triad: which duty (independence, impartiality, disclosure, competence, confidentiality, no conflict), what disclosure is required and when, and what the neutral must do if the duty is breached (decline appointment, resign, or continue with informed consent where permitted). Apply the triad to each scenario and name the duty explicitly.
Drafting ADR clauses that specify the process but leave the institution, seat, language, number of arbitrators, or governing law unstated, producing a pathological clause.
Candidates focus on the choice between mediation and arbitration and treat operational details as boilerplate, not realising that omissions create the disputes the clause was meant to avoid.
What to do instead
Use a fixed drafting checklist for every clause: process, institution or ad hoc rules, seat, language, number of arbitrators and appointment method, governing law, and a stepped multi-tier sequence with time limits. After drafting, redraft it as an adversary would attack it, and add the missing element that would defeat the attack.
Describing a settlement agreement as binding without addressing the formality needed for enforcement, such as writing, signature, and the mechanism (consent award or court-approved settlement) that gives it executory force.
Candidates equate a signed deal with an enforceable one and overlook that enforceability depends on the chosen mechanism and jurisdiction.
What to do instead
For every settlement question, state the validity requirements (writing, signature, certainty of terms, authority of signatories) and then the enforcement route: consent award under the arbitration rules, court-approved settlement where available, or contract action. Specify which route the scenario supports and what step is still outstanding.