Law 5101 – Arbitration and Dispute Resolution

October 4, 2022

1. There are multiple modalities of Alternative Dispute Resolution.

2. This course is focused on commercial ADR. How to manage a

dispute so as to avoid the national courts.

3. It aims to develop capacity of persons to function in the field and

assist clients to achieve their objectives.

4. ADR is a global discipline. It is not domestic in approach because

the implications are international.

5. What is your area of competence?

6. Difference between judgement and order. A judgement is a

reasoned decision which explains how a judge arrived at their
decision whereas an order is dispositive. It establishes that which
is capable of being enforced.

7. Dispute can be settled by public means (litigation) or by private

alternative dispute methods (arbitration, mediation etc.)

8. A private method of ADR can become public in cases of ordered

ADR.

9. The right to litigation (access to courts) is a constitutional right

once a cause of action has been established.

10. A court’s duty is to interpret and apply the law.

11. ADR is a contractual right. It is based on agreement by the

parties.

12. Revise Law of Contracts.

13. If ADR is not provided for in the contract, then litigation
might be the only option barring any further agreement to ADR by
the parties.

14. The A in ADR can mean either alternative or appropriate.

15. A contract or agreement is a risk management tool. It can

specify how disputes are to be managed by effective methods of
dispute resolution.

16. Risk management speaks to

i. I (identifying risks)
ii. A (allocating or distributing risk away from party to
someone else) and
iii. M (mitigating or mediating the risk)
Law 5101 – Arbitration and Dispute Resolution
October 7, 2022

1. The basis of a contract is that parties are free to agree to

whatever they want subject to applicable law.

2. When it comes to ADR there are a range of options or multiple

mechanisms to resolve disputes.

3. Arbitration may or may not be a part of the spectrum.

4. It is always important to consider whether each mechanism is

appropriate.

5. The major pitfalls to consider in traditional litigation are time

efficiency, flexibility in access to and costs.

6. Adjudication is also a form of ADR.

7. See Civil Procedure Rules on ADR

Nature of Arbitration and how it functions

8. Arbitration is adversarial is nature and leads to a binding decision.

9. In ADR there is party autonomy which means that parties are free
to set their own rules.

10. There may be a process to challenge an Arbitral decision

such as procedural irregularity or lack of due process. See
Arbitration Act.

11. Arbitration is a private process but although treated as

confidential is not inherently so.

12. An arbitration clause can include the law by reference e.g.

ICC Arbitration.
13. Courts are designed to deal in territorial matters. See
principles of private international law. Jurisdiction is original,
inherent and unlimited.

14. ADR institutions are able to deal with cross border matters.
Jurisdiction is contractual.

15. Review of the history of law and equity. From the

Anglo Saxons to AD 1066 when the common law was established.

16. This was a stoic approach with established writs.

17. Then came the Chancellor of Exchequer who dealt with law
by conscience known as equity which ameliorated the strictures of
the common law.

18. If a remedy was not to be found in the law, parties can then
seek equity.

19. Equity was governed by maxims. It came to be said that

Equity follows the chancellor’s foot.

20. Law and equity operated side by side but never mixed.

21. During the period 1873-1875 there was a merger of the

legal and equitable judicial system whereby the same court had
inherent and original jurisdiction.

22. This was constrained by a system with limited control.

Documents to be filed were fixed. Most things are controlled by a
Registrar.

23. Arbitration has party autonomy and is flexible. It is governed

by the terms of reference in the agreement.

24. Judgement of arbitrator is not limited by jurisdiction as with

the courts.
25. While ADR is not suitable for every case it should be
considered in every case. The needs of the client are paramount.

26. The process for each alternative may coincide.

27. Pitfalls to ADR. Some processes may be timely and costly

and do not address the needs to the client.

28. You must consider what the client requires. Engage in a cost
benefit analysis.

29. One emerging trend of ADR is that court related arbitration

seems to have a greater level of acceptance.

30. Construction industry (anything that deals with

infrastructure. Building or works)

31. Baseball negotiation. Team owners. Unionized arrangement.

32. Re-negotiation forces people to be reasonable. One party

puts forth a justification. It discusses the last negotiating position.
33.
Law 5101 – Arbitration and Dispute Resolution
October 11, 2022

Recap.
1. ADR spectrum and how it functions – traditionally as an
Alternative to court or as an Appropriate mechanism (litigation
is always an option).

2. The ultimate objective is what is best for the client.

3. Conduct a risk assessment to determine what is likely to

become problematic.

4. Is it a question of cost or expert determination.

5. Negotiation gets you into agreement. If the agreement goes

bad, re-negotiation will reexamine the terms.

6. Is conciliation different from mediation or is it the same?

7. Mediation-Arbitration or Arbitration-Mediation or MED-ARB-MED

8. There are common ingredients in different mechanisms along

the spectrum such as the use of an independent and neutral
third party.

9. Skill or training isn’t necessary. It is desirable but not

indispensable.

10. In negotiation there is no need for an independent third

party. Nor is there any amicable discussion.

11. Parties are always bound by their contractual obligations.

12. The most important doctrine in contract law is the
fundamental freedom to contract subject to applicable law
(party autonomy).

13. Autonomy means to reserve unto oneself the right to engage

in contract on your own terms and conditions.

14. Litigation – constitutional right to access to courts once there

is a cause of action.

15. ADR - contractual right to resolution of dispute.

16. Autonomy – freedom to determine terms of reference

between parties and arbitrator.

17. Party autonomy leads to flexibility and control. Party can

leave the process when they want.

18. Arbitration can be institutional or ad hoc.

19. Voluntariness – unless restricted by Court ADR or mediation.

Consensus ad idem as per the contractual nature of the
arrangement.

20. Confidentiality- private but not necessarily confidential.

21. Flexibility – May be in the interest of time or how they

manage their process.

22. ADR is a deliberate choice whereas Litigation is as of right.

23. Time is an important element in the ADR clause and is

voluntary. It is better to address this once parties are in the
agreement stage and before a dispute has arisen.

24. Parties can also rank the mechanism they will use.
25. Choice factors. Expectations and needs. What is most
convenient for the parties. What is the cause of the dispute
(process of risk assessment).

26. Resources. Choose how to use these. Financial and other.

Capacity of management to underwrite cost.

27. Importance of right mechanism. Parties know their matter

more than you and are looking for a resolution so pay attention
to them.

28. Confidentiality – depends on what you negotiate for.

Mediation is confidential. Arbitration not so much as award can
be challenged.

29. Is the nature of the dispute technical or legal.

Read ADR legislation.

30. Arbitration is adversarial whereas mediation is amicable with

a view towards preservation of relationships.

31. Factors to consider when choosing a method

a. Whether the matter can be easily determined or whether

it requires expert determination. In case of technical
matters, adjudicator or expert determinator will be best.

b. Nature of relationship. Whether the matter is ongoing or

not and whether preserving the relationship will be
necessary.

c. Timing. How quickly do you want a resolution? Time is

money. Arbitration requires pleadings and evidence
before you can get a decision.
 d. Remedies. What are the different remedies available.
There are difference processes to determine different
remedies.

e. Enforcement. ADR enforcement is the same as litigation.

f. Number of parties involved and their motivation to settle.

g. How important is the outcome

h. Finality. Is there a right to appeal

i. Cost. Some alternatives are more expensive than others.

Most persons have a tight budget. Remember to conduct
the cost/benefit analysis.

j. Is there need for a considered or mature decision.

32. Undermining bases of Mediation

a. Unless there is a bona fide desire to settle there is no

need to mediate.

b. Not effective without previous negotiation.

c. Good faith negotiations can be hampered by posturing

(when amicable in nature).

d. Some mediators who are former judges can hamper the

process.

e. No authority to settle.

f. Mediator must be neutral.

g. Party not properly prepared.

33. Forms of amicable ADR include mediation, conciliation and
good offices.
Law 5101 – Arbitration and Dispute Resolution
October 14, 2022

1. The ADR clause(s) is usually contained in an agreement called a

container agreement.

2. They might refer to the applicable laws, which Court has

jurisdiction to hear the dispute, and what particular ADR method is
to be used.

3. As in contracts, each clause will take the form of its own

agreement and would be able to stand on its own.

4. They can also be contained in a separate agreement which

incorporates the container agreement by reference.

5. The agreement will have the usual elements of clarity on parties,

subject matter, intention to create legal relations. Consideration is
most likely to be contained in the container agreement.

6. The agreement to arbitrate etc. must have the elements of a usual

contract.

7. The jurisdiction of the seat of the dispute resolution could be

distinct from that in the container agreement.

Read Akhurst on multi-tiered dispute resolution clause.

8. This is a series of steps not a single step to dispute resolution and

is usually for the benefit of the parties.

9. Each step must be considered before you can get to the other.

10. Clarity in drafting is key.

11. This approach can be used tactically to delay so its

important to ensure that each step is time bound.
12. The obligation to arbitrate can be institutional or ad hoc.

13. Institutional arbitration arises where the agreement refers to

and is subject to an established institution, such as

a. American Arbitration Association’s International Center for

Dispute Resolution (ICDR)
b. China International Economic and Trade Arbitration
Commission (CIETAC)
c. Hong Kong International Arbitration Centre (HKIAC)
d. International Chamber of Commerce (ICC)
e. London Court of International Arbitration (LCIA)
f. Arbitration and Mediation Court of the Caribbean (Barbados
AMCC)

14. Ad hoc arbitration occurs where no reference is made to any

designated institution.
Law 5101 – Arbitration and Dispute Resolution
October 18, 2022

1. Negotiation is the heart of mediation.

2. Definition by Fisher & Yuri – a basic means of getting what you

want from another.

3. There are commonalities and differences between the two.

4. It assumes some level of back and forth between the parties.

5. If a third party is present, it is not for him to intervene but to

render assistance recognizing that the parties have control of the
outcome.

6. Negotiation strategies/framework.

7. Note that there are different approaches to negotiation.

8. Competitive approach
a. Parties engage with the primary objective of being
themselves
b. They make high demands in the hope that they end up with
what they want.
c. Disclosure is limited and on an as needs basis.
d. Few and small concessions are made.
e. Veiled threats may be employed.
f. Doesn’t ordinarily respond to concessions.

9. Co-operative (problem solving) approach

a. From me to we. Parties discuss what is in their best interest.
b. Parties are concerned about their relationship and think
about solving the problem.
c. Ensure that demands are moderated and fair and
reasonable.
d. Engage in greater process of disclosure (disclose more).
 e. Likely to make further and more concessions (co-operating).

10. Interest based (principled) negotiation/bargaining

a. Less committed to position
b. Separate people from the problem
c. Identify mutual interests (what amounts to consensus)
d. Present options for parties to agree on
e. BATNA (best alternative to negotiated agreement)
i. There is a range of consideration. Identify the ceiling
and floor
ii. Know what the strengths and weaknesses are on the
other side.
iii. Must be realistic so therefore consideration must be
given to the opposition. Put yourself in the other
person’s shoe
iv. To get to effective bargaining position

f. Seven (7) principles of negotiation

i. Identify interest – what do people want.
ii. Develop options (two or more) based on interest.
iii. Process must be fair
iv. Think about the result
v. Avoid exacerbation of conflict
vi. Tends to be concerned about the relationship
vii. Requires an implementation plan

g. The implementation plan must

i. Identify client interests
ii. Strengths and weaknesses of the case
iii. Look at areas to question the other side with a view to
helping them
iv. Determine what information to share and what to
withhold (as matter may end up in litigation). Not
everything good to eat, good to talk.
v. Remember BATNA
vi. Advise client as to reasons to adopt BATNA
 vii. Create a settlement agreement that is not biased to
your side.
viii. Look at ethical questions.
ix.
11. Read on approaches / theories to negotiation.

12. Bases for negotiation

a. Fairness
b. Efficient including reference to cost and time
c. Satisfaction of interests
d. Preservation of relationships