Advanced Alternative Dispute Resolution and Mediation

• Legal managers
• Company lawyers and in-house counsel
• Commercial contract managers
• Academic lawyers
• Lawyers and other professional advisers in private practice
• Anyone involved in the professional management of relationships




• Distinguish between different forms of ADR
• Evaluate strategies for resolving conflict
• Prepare their organisation to participate in dispute resolution processes
• Use negotiation skills in commercial and other disputes
• Evaluate the merits of using an intermediary to facilitate a win-win result
• Plan and implement a dispute resolution strategy
• Determine when mediation is the best means of resolving disputes
• Prepare their organisation to participate in the mediation process
• Use mediation skills

Introduction to Dispute Resolution

• Typical Causes of commercial disputes
• Common legal remedies from court action
• Do we want an enforceable court judgment?
• Litigation strengths and weaknesses
• Considering ADR contract mechanisms – tiered clauses
• Jurisdiction and applicable law issues
• Dispute case studies and exercises

Mediation

• Mediation fundamentals
• Working with neutral intermediaries
• Facilitative vs Evaluative mediation approaches
• Appointing and Working with a mediator
• Process and Stages of a mediation
• Reaching a settlement agreement
• Practical arrangements

Arbitration

• Arbitration principles
• When is arbitration appropriate?
• Selecting and appointing the arbitrator and the forum
• Strengths and weaknesses of arbitration
• What happens if we lose?
• Recognition and enforcement of arbitration awards
• Arbitration variants
• Pendulum (baseball) arbitration
• Class exercise : Preparing for arbitration

Other Dispute Resolution Mechanisms

• What are the other choices and when might we use them?
• Conciliation
• Settlement conference
• Expert determination
• Early Neutral evaluation
• Dispute Review Boards
• Med/Arb
• Ombudsman

Negotiating solutions to disputes

• Conflict management styles
• Distributive and integrative negotiation
• Building relationships to improve success
• BATNA – What’s my Plan B?
• Negotiation phases
• Using “the third side” in negotiation
• Class exercise : Negotiation preparation and role play

Mediation Agreements and other Formalities

• Contractual commitments to mediate
• ADR Contract Clauses
• The Mediation Agreement
• Important Clauses in the agreement
• Establishing the rules of the mediation
• “Without prejudice” status of discussions
• Confidentiality
• Terminating the agreement
• Fees and expenses
• Settlement Agreements
• Staying future proceedings

Mediation Processes

• Structuring a mediation process

o Preparation phase

o Opening joint sessions

o Caucus meetings in private

o The Conclusion phase

• Alternative mediation processes
• Formalising the settlement agreement
• After the mediation
• Class exercise: Mediating a dispute

Developing Mediation skills

• Building trust and rapport
• Active listening
• Identifying common interests
• Engaging reluctant participants
• Facilitating co-operative problem-solving behaviours
• Dealing with deadlock
• Helping both sides get a win-win
• Class exercise

Mediation Scenarios

• Choosing the right mediator for the job
• Duties of the mediator and professional advisers
• Mediation scenarios
• Commercial disputes
• Domestic / Family disputes
• Online mediation
• Beyond mediation – next steps and alternatives