Lovells

Mediation

This is the most popular form of ADR. An independent third party neutral (the mediator) is appointed by the parties to manage the mediation process. The mediator is likely to be someone with the appropriate professional or commercial background. At the mediation the parties go into caucus after an opening round table discussion and the mediator moves between all parties clarifying the key issues, searching for settlement positions and facilitating negotiations. As part of the process the mediator may provide the parties with a common sense assessment of the merits of their respective cases.

'Med-Arb'

Initially, the parties submit their dispute to mediation. If no agreement is reached the parties refer the matter to arbitration. The arbitrator may be the same person who has been acting as the mediator. This saves costs because the arbitrator already knows the facts of the case. However, there is a risk that during the mediation the parties will have given the arbitrator confidential information relating to their case.

Executive Tribunal

The parties present their case (in the form of time limited submissions) to a panel comprising senior executives (one from each party) with authority to settle, and a neutral. Ideally the senior executives have very little to do with the dispute in question, but have the necessary authority to resolve it. Following the submissions the senior executives and the neutral third party, in effect, mediate.

Mini-Trial

Here, the parties meet in the presence of a neutral adviser, such as a retired judge or a judge from another jurisdiction.  There may or may not also be a mock jury.  After presenting the case in an abbreviated form, and obtaining feedback from the judge or jury, the parties attempt to formulate a settlement. 

Adjudication

The adjudicator gives a quick decision which is binding until final determination by the courts, arbitration or agreement. There is a right to refer the matter to arbitration or litigation if notice is given within the specified time.  This form of dispute resolution is commonly used in construction disputes.

Early Neutral Evaluation

A non-binding opinion on facts, evidence or legal merits is given by a neutral third party in the interests of helping the parties avoid further unnecessary stages in litigation, and serving as the basis for further and fuller negotiations (see also Judicial Appraisal and Expert Appraisal). 

Judicial Appraisal

Schemes are available whereby former judges and senior counsel are available to give preliminary advice on their views of the legal position in a dispute following representations from both parties. It is up to the parties to agree whether this opinion is to be binding or not. 

Expert Appraisal

This involves the parties to a dispute jointly putting their case to an independent expert for review. The expert can be legally or technically qualified.  After the expert has given his opinion, the parties meet at either senior or some other level to discuss the opinion and try to settle the case.

Expert Determination

This is a process by which a final and binding decision is given by an expert, usually on a limited technical issue (although parties can agree to it on a non-binding basis).

Final Offer Arbitration

The parties submit an offer on the terms on which they are prepared to settle to a neutral third party. The neutral third party then chooses one of the parties' offers. Neither party should make an unrealistic offer because that might result in the neutral choosing the opponent's offer.

Dispute Review Board

The emphasis in this form is on the prevention of disputes as well as resolution.  A Dispute Review Board is an independent panel of individuals appointed by the parties.  The Board is kept informed of the status of the project in question and if a dispute arises the Board should make recommendations for its resolution.  The recommendations are not binding but they will usually have effect until the end of the project.