Date 1 March 2011
ADR
Alternative Dispute Resolution. Processes aimed at encouraging the settlement of disputes without the need to involve the court.
Arbitration
A quasi judicial procedure by which an impartial, independent party / parties decide(s) the outcome of a dispute between two (or more) other parties.
Case Evaluation
The dispute might be submitted to a neutral evaluator or panel for
consideration. The evaluator or panel consider submissions and hears witnesses. Their decision is not binding on the parties. This form of ADR may be suitable if the parties have different perceptions of the strength of their case and even if not successful may highlight to a party the strengths and weaknesses of their case.
Conciliation
Whilst this term is often used interchangeably with mediation, the two concepts are, in fact, different. Conciliation is conventionally similar to mediation in that an impartial third party will be appointed, but has no authority to make any decision which is binding on the parties. In a conciliation, however, the third party might take a more active role than a mediator – he or she might give opinions on the merits of the parties’ cases and/or put forward settlement proposals.
Early Neutral Evaluation
Often referred to as “ENE”. An independent and neutral evaluator (often a judge, a retired judge or senior counsel) meets with the parties early on in the dispute to give a non-binding and confidential assessment of the dispute.
Executive Tribunal
See mini trial, below.
Expert Appraisal
Expert apprisal is where an independent expert on the subject matter is appointed by the parties. The expert will either be agreed on by the parties, or will be appointed by their nominee(s).The expert will provide a non-binding assessment of the matter(s) referred to it.
Expert Determination
Expert Determination is where an independent expert on the subject matter is appointed by the parties and reaches a binding decision. This form of ADR is often provided for in commercial agreements. It is particularly suitable for disputes requiring a degree of technical knowledge, but may not be suitable if the parties wish to be fully heard and there are issues of credibility. Rights of appeal are limited. The procedure is determined by the contract which establishes this ADR process, or as otherwise agreed between the parties. The expert will either be agreed on by the parties or will be appointed by their nominee(s). The powers of the expert (e.g. whether the expert can make a costs order) are usually set out in separate terms of reference.
Judicial Appraisal
This is a procedure by which the parties appoint a judge (or a retired judge or senior counsel) to review materials / hear submissions (as agreed by the parties) and to declare, based on such materials and submissions, who he/she thinks would succeed if the matter went to trial. This is a non-binding assessment of the case.
Med-Arb
A process whereby parties agree that, initially, they will try to resolve any dispute by mediation. In the event that this does not result in satisfactory resolution of the matter, the mediator (or another arbitrator who has had no previous involvement in the matter) assumes the role of an arbitrator and will make a binding determination.
Mediation
Mediation is a confidential without prejudice process intended to facilitate the resolution of disputes through the medium of an impartial third party. The mediator has no authority to make any decision which is binding on the parties. In the event that the mediation does not end in an agreed resolution, the content of the mediation will remain confidential and will not be made known to the court.
Mini Trial
A neutral person presides over a panel of executives from the parties in dispute. The panel will hear presentations from each party on its legal case. The panel, assisted by the neutral party, then attempts to negotiate a settlement. Sometimes also referred to as an executive tribunal.
If you would like more information or advice relating to a specific matter, please do not hesitate to contact Robert Ryall on 01727 798084 or by email at robert.ryall@salaw.com or any member of the Commercial Dispute Resolution team.
© SA LAW 2011
Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual cases.