BEYOND KNOWN SPACE: ADR in the 4 th DIMENSION a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb CEDR-Accredited Mediator to SINGAPORE INSTITUTE of ARBITRATORS/ LAW SOCIETY of SINGAPORE Tuesday 27 th February 2007

OVERVIEW of PRESENTATION  Introduction  Dispute Resolution Options  Forms of ADR  Some Key Issues  Conclusions

DISPUTE RESOLUTION OPTIONS  Litigation  Arbitration Domestic/International  Expert Determination  Mediation  Other ADR  Advantages and Disadvantages

FORMS OF ADR  Determinative  Expert Determination  Adjudication  Pendulum/Baseball/Flip-Flop Arbitration  Other  Non-Determinative  Mediation/Conciliation  ENE/PMTs/DABs/DRBs  Med-Arb and Arb-Med  Other

EXPERT DETERMINATION  Historical Origins  Comprehensive English Case Law  Use of Expert’s Expertise  Applicability of Rules of Natural Justice  Expert Has Procedural Free Hand  Severe Limits on Grounds for Challenge  Robust Support by English Courts  Enforcement

FORMS OF ADR: NON- DETERMINATIVE  Executive Negotiation  Early Neutral Evaluation (ENE)  Private Mini-Trials  DABs & DRBs  Mediation/Conciliation  Med-Arb and Arb-Med  Arbitrediation  Other/None of the Above

SOME KEY ISSUES  Enforcement  User Reluctance to try Something New  Lawyer Resistance  Med-Arb faces difficulties in England  Problems with Issue of Consent Awards  Arb-Med IS a (the) Solution !!

MED-ARB IN ENGLAND (1)  Effectively ‘outlawed’ by Glencot v Barrett  Adjudicator acted as Mediator  Private sessions  Partially successful, reverted to Adjudication  Decision set aside for Apprehended Bias  Decision unhelpful, unduly restrictive  English law goes too far i.r.o. bias  Appoint Arbitrator + Mediator

MED-ARB IN ENGLAND (2)  Weissfisch v Julius/Ors [2006] EWCACiv218  J is arbitrator in dispute A vs R  J formerly legal advisor to each of A and R  J legal advisor to company at heart of dispute  J had acted as mediator between A & R  Parties fully informed/advised  A sought injunction to stop J arbitrating  CoA refused to grant injunction  CoA refused to disturb arbitration agreement

DIFFICULTIES with CONSENT AWARDS  Cannot convert mediated Settlement Agreement into Consent Award: no dispute left to arbitrate  Use of Consent Awards for Money- Laundering e.g. in USA  Consent Awards at risk under Proceeds of Crime Act/Money-Laundering Regulations

ARB-MED is the ANSWER  Arbitral proceedings (e.g. accelerated)  Issue Award in Sealed Envelope  Arbitrator commences a Mediation  If successful, destroy Award unread  If unsuccessful, open Award  Glencot v Barrett irrelevant/inapplicable

CONCLUSIONS (1)  Widen The Options/Expand the Toolkit  Think ‘outside the box’  Creative Solutions to Modern Problems  Take Risks – Caution is Expensive !  Lose Fear of P/I Risks

CONCLUSIONS (2) THANK YOU for listening to me this evening