Unit 8

Question 1

What is ADR

Answer 1

ADR stands for Alternative Dispute Resolution. ADR is generally used to describe the methods and procedures used to resolve disputes either as alternative to the traditional mechanism of the court or in some cases as supplementary to such mechanism.
Taken broadly, ADR includes a variety of private means or court supervised means of settling disputes; such as: mediation, negotiation, arbitration, etc. ADR illustrious history of thriving where State law cannot reach indicates thatADR has a very bright future indeed.

Question 2

What are the types of ADR

Answer 2

Arbitrators), the Chartered Institute of Mediators and Conciliators (ICMC) and the Nigerian Conflict Management Group (NCMG) amongst others.
8.2 Types ofADR
Conciliation; Negotiation; Mediation; Mini-trial; Neutral evaluation; Med-Arb; Arb-Med; Private Judging
There have been arguments on whether or not Arbitration should be classified as
ADR or not
Synopsis of Alternate Dispute Resolution Mechanisms
Below are brief descriptions of the most prominent of the ADR mechanisms in use today, particulary. CONCILIATION, NEGOTIATION, MEDIATION, MED-ARB, ARB-MED, MINI+-TRIAL, NEUTRAL EVALUATION, ARBITRATION AND PRIVATE
JUDGING.

Question 3

Conciliation as a form of ADR explain

Answer 3

What is Conciliation?

A dispute resolution method involving a third-party facilitator (conciliator).
Similar to mediation, but with a key difference: the conciliator can propose settlement solutions.
Governed by the Arbitration and Conciliation Act (ACA) in Nigeria.
Primarily applies to international commercial agreements, but can be used for non-international ones by mutual consent.
The Conciliation Process:

Outlined in the Conciliation Rules set forth in the ACA.
Involves steps like appointing the conciliator, submitting statements, and communication between parties.
The conciliator acts impartially and guides the parties toward an amicable settlement.
The conciliator can propose settlement options at any stage.
Outcomes of Conciliation:

Aimed at reaching a settlement agreement signed by both parties.
The agreement is legally binding and enforceable like a contract.
Unlike arbitration awards, enforcement requires a full court action and trial.
Key Takeaways:

Conciliation offers an alternative to litigation for resolving disputes, particularly in commercial settings.
The involvement of a neutral conciliator proposing solutions can facilitate communication and expedite settlement.
While the final agreement is legally binding, enforcing it requires a court process compared to the direct enforceability of arbitration awards.

Question 4

Similarities between Arbt and conciliation

Answer 4

1.
2.
3.
4.
5.
6:
7.
8
9.
Both Arbitration and Conciliation are statutorily founded. They are both backed by the Arbitration and Conciliation Act CAP 19, Laws of the Federation 2004.
In Arbitration, the Clause must be written. This is not necessarily so in Conciliation
S 57 of the ACA restricts Arbitration to Commercial Activities, whilst the subiect matter of Conciliation is infinite
S 19 of the ACA for Arbitration you will submit your points of Claim and Points of Defence whilst for Conciliation Art 5 of the third Schedule of the ACA, a brief or written statement ids to be submitted.
Commencement of Arbitration - Notice of Arbitration is necessary as contained in Article 3 of the First Schedule to the Rules. Once Notice is given, Arbitration commences; in Conciliation S39 provides that it commences on the date the request to commence is accepted by the subject in dispute Appointment of Arbitrators and Conciliators Number of Arbitrators / Conciliators in a proceeding
Role of Arbitrator / Conciliator Termination of Arbitration / Conciliation Proceeding

Question 5

Negotiations as a form of ADR

Answer 5

Negotiation is a common way for people to deal with problems and conflict. I happens when the people involved in a dispute want to talk to each other with the aim of finding a solution to the problem through bargaining and trading. Sometimes negotiation is very informal, and it happens within everyday situations. It can also be a formal method of conflict resolution used to resolve interpersonal, intergroup and interstate conflicts. (Please see page 54 for more details).
A negotiation is a strategic discussion that resolves an issue in a way that both parties find acceptable. In a negotiation, each party tries to persuade the other to agree with his or her point of view. By negotiating, all involved parties try to avoid arguing but agree to reach some form of compromise.
Negotiations involve some give and take, which means one party will always come out on lop of the negotiation. The other, though, must concede even if that concession is
nominal.

Question 6

What is the nature of meditation

Answer 6

Mediation is a process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences
Mediation is a negotiation process facilitated by a neutral third party who listens to all parties and helps them to communicate with each other or one another, as the case may be.
The Dynamics of Mediation in Dispute Resolution
What is Mediation
Mediation can also be said to be a negotiated settlement of a dispute, with parties taking active control of their dispute and how it is resolved though the help of a third party-Mediator

Question 7

Roles of a mediator

Answer 7

Mediation leaves the decision power totally and strictly with the parties. The mediator does not decide what is “(air” or “right,” does not assess blame nor render an opinion on the merits or chances of success if the case were litigated. Rather, the mediator acts as a catalyst between opposing interests attempting to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will. The mediator will, however, seek concessions from each side during the mediation process.

Question 8

Global companies that use mediation

Answer 8

Google’s Approach to Dispute Resolution: “Don’t Litigate”
2. In 2013 Google avoided formal charges by the Federal Trade Commission by agreeing to make small changes to its search practices.
• 3.
In February of 2014, they reached a similar deal with European Commission regulators, promising to reserve space high on its European search pages for competitors like “Nextag” to offer their own search results, albeit only after paying Google for the space.
4. These two deals allowed Google to avoid an official probe and a potential fine of up to 10% of its global annual revenue, which was $59.8billion in 2013
5. Compare with Microsoft that fought European antitrust charges for a decade, a battle that ultimately cost the company more than $2.5billion in fines
Mediation is the most favoured ADR mechanism for the following reasons:
1
Legal Frame work
2. Potential for developing optimal solutions: Low cost to parties and providers;
Potential for preserving the parties’ relationship; Efficiency in timely resolution;
Speed of Implementation of Mediation Agreement.
3. Customary Laws

Arbitration and Conciliation Act, FHC Act etc.?
5.
6.
Laws of Various States
Traditional way of resolving disputes peacefully in agrarian rural based Nigeria. Mediation was used as a tool for preserving cultural norms and values The mediator’s authority was hinged on his standing and the respect accorded to him in the community. Mediation prevented disputes from escalating. maintained peace and preserved traditional values.
bid
Copyright

Question 9

Order 3 r 11 of High Court of Lagos State (Civil Procedure) Rules 2012: -

Answer 9

All Originating Processes shall upon acceptance for filing by the Registry be screened for suitability for ADR and referred to the Lagos Multi Door Court House or other appropriate
ADR institutions or Practitioners in accordance with the Practice Directions that shall from time to time be issued by the Chief Judge of Lagos State.”

Question 10

What does Lagos court of arbitration law state

Answer 10

The Functions of the Court of Arbitration shall be to:
Promote resolution of disputes in the territory of Lagos State by Arbitration and other ADR mechanisms apart from litigation.
Maintain a Penal of Neutral which shall consist of Arbitrators, Mediators as well as other experts with special skills and experience in specialized areas and who are willing to be members of any Tribunal constituted by the Court of Arbitration in respect of any Dispute referred to it.
Mediation guidelines of the CA
Article 1.2. For the flexibilty of the mediation process, Guideline shall not be unduly prescriptive. Construed and interpreted in a liberal manner to produce a just, efficient. expeditious and cost-effective process of resolving disputes by mediation between
parties.
Article 1.3: Mediation Agreement: A written agreement wherein parties have agreed 10. submit all or certain disputes which have arisen or which may arise between them lo mediation, It may be a mediation clause of separate agreement.

Settlement Agreement: Agreement reached between the parties at the successful conclusion of the mediation

Question 11

What is the objective of Lagos multi door court house

Answer 11

The objectives of the LMDC are to; -
Enhance access to justice by providing alternative mechanisms to supplement litigation in the resolution of disputes;
Minimize citizen frustration and delays in justice delivery by providing a standard legal framework for the fair and efficient settlement of disputes through Alternative
Dispute Resolution (ADR);
Serve as the focal point for the promotion of ADR in Lagos State;
Promote the growth and effective functioning justice system through ADR methods.
Lagos Multi-Door Courthouse Law
Functions and Powers of the LMDC
Apply mediation, any other ADR mechanisms in the resolution of such disputes as may be referred to the LMDC.
Encourage disputing parties to appear before the LMDC for the resolution of their disputes;
Assist disputants in the resolution of their disputes and act as administrators in the conduct of Mediation
Promote or undertake projects or other activities including Settlement Week which will help to achieve the purpose for which the LMDC was established
Mediation process
Mediator
Listening - Skilled Listener
Position
No judgment
Reframing
Interest

Question 12

What makes a good meditator

Answer 12

Good Listener
2
Resourcefulness: Good mediators need to be able to deal with lots of constantly changing information. Ability to think & respond rapidly is a critical success factor for a mediator
Be Patient: Pulling the parties along may require time
Emotional Intelligence: The knowledge of moods, persons, personalities, circumstances, right-timing, and all other intangibles
Be Friendly
Problem Solver and Ability to Handle Conflict
Good Questioning Skills
Fast Thinker
Listening-‘The good listener gets more time to think & to see
Thinking creatively can extend the speed & ability of the brain to come up with new, different & sometimes better answers to a problem
Recognize the barriers to creative thinking, such as patterns, fear of looking a fool; dominant ideas, polarizing tendencies. Consciously overcoming them
Train yourself to use questions to challenge assumptions & stimulate your thinking. e g. “what other ways?”
Learn to reframe problems to see them in a different light

17.
Handling Conflicts
Listening to what the parties have to say helps the quality of mediation. Don’t just make assumptions, hear what you want, and talk too much.
Avoid bad listening habits or superficial listening. Be attentive, look at the speaker all the time, occasional nodding, facial movements that fit the story, words that encourage the other person etc.
Use non-verbal behaviour & eye contact to show people that you are listening.
18.
19
Test your understanding &clarify meanings
Express feelings, ask appropriate questions & summarize
20.
21.
22
23.
Questioning
*I keep six honest serving men (They taught me well); Their names are What,
‘Why’. ‘When’, ‘How’, “Where’ & ‘Who’ Rudyard Kipling
Questions are versatile tools which are a vital part of mediation, as they allow you establish a wider framework for the mediation, move out of stalemates, clarify details, stimulate thinking, gain commitment & float ideas. Improve your use of this stool by:
Use open questions to encourage people to talk; and Use closed ones to get short
‘yes’ & ‘no’ answers
Using ‘chunking up’ questions such as “what will having x do for you?” to get behind stated reasons for doing or wanting things.
24.
25.
Using ‘chunking down’ questions such as ‘how specifically?’ to get details and unpick generalizations
Challenge assumptions by asking what would happen if you did/didn’t?’
26
Don’t accept statements at face value. Use probing questions to find out more
detail.
27.
Stimulate thinking by asking whatif.
28.
29.
Adopt a conversational approach, not an interrogation.
Gain commitment by putting suggestions in the form of question
30.
Use questions as a way to defuse aggression & calming conflict.
31
Thinking fast
Thinking creatively can extend the speed & ability of the brain to come up with new, different & sometimes better answers to a problem. Thus one has to recognize the

Question 13

How do you manage culture differences in Mediation

Answer 13

Managing Cultural Differences In Mediation
Business culture, organizational culture, ethnic or religious culture, university culture, and so on.
Sometimes disputant parties come from different cultural background.
Sometimes one or more disputants have a different cultural orientation from the mediator.
Cultural biases and ethnocentrism inhibit good communication.
Cultural knowledge facilitates cross-cultural understanding and prevents the cultural
‘distance’ from becoming a new source of dispute.
In conclusion, note that Cultural differences represent the primary source of conflict in the interstate system, religious identity being the main defining cultural characteristic.
2) Cultural differences are most likely to promote conflict when particular pairs of culture interact (e.g. Western and Islamic “cultures”).

Question 14

What is the relationship between power and meditation

Answer 14

‘Power can corrupt, but absolute power is delightful’-Anon
Note the Following:
The balance of power between 2 parties in mediation can affect the outcome of that mediation. The environment, the situation & the perceptions of the individual can affect or alter the balance of power.
To use ones power effectively, it helps to be aware of ones internal & external power & a realistic understanding of that of the other party.
External Power: Legitimate or Position power, Reward power, Coercive power, Expert power, Charismatic, Connection, Information, Physical & Negative powers.
Internal Power: Beliefs about oneself, Self Esteem, & Confidence. Increase ones internal power
Mediation does not eliminate power disparities, but can reduce them as parties focus on joint solutions rather than hurting each other.
Mediators need to help ‘weak’ parties realize the power of the mediation process to obtain optimal solutions.
Mediators need to help ‘strong’ parties realize the joint gains and low costs of mediated outcomes that cannot be obtained by unilateral imposition

Question 15

What are the 11 step’s suggested for addressing power imbalance in mediation

Answer 15

Eleven Steps Are Suggested For Addressing Power Imbalances In Mediation:
(1)
do not make unnecessary assumptions about existing power relationships,
(2)
exploit mediation’s innate ability to address power imbalances,
(3)
encourage the parties to share knowledge,
(4)
use the parties’ desire to settle as a lever,
(5)
(6)
(7)
compensate for low-level negotiating skills,
interrupt intimidating negotiating patterns,
make accommodations for language differences,
(8)
respect the needs of young people,
(9)
watch to see that one party does not settle out of fear of violence or retallation,
(10)
conduct mediation in a context that offers information and support to both parties,
and
(11)
do not rush to settlement.

Question 16

What is the role of representating

Answer 16

Obtain all necessary information from the Client: his interests and concerns, including those that are personal and emotional.
Too often clients allow their lawyers/representatives to focus exclusively on financial claims and unwittingly narrow the possibilities for a mediated settlement.

Question 17

Disputing parties

Answer 17

Disputing Parties
Explore the possibility of engaging in a formal dispute-resolution process such as mediation before going to court.
Identify and express the Mediators interest in the dispute, including those that are not financial, and encourage the other side to do the same: e.g. formal apology or evidence that the other party is taking steps to correct its mistakes.
Preparing For The Mediation

Question 18

I may be a slow walker, but I never walk backwards

Answer 18

‘I may be a slow walker, but I never walk backwards’- Abraham Lincoln
This involves the mediator listing his own desired outcomes & needs, plus estimating the needs & outcomes of the other party. way of achieving that?
way or achievig era desired outcome - what you want to achieve, why, & is there only one Tallo disputants are to know their priorties and their limits; establish your ideal, realistic &. talback positions; estimate the bargaining arena: know whai concessions they can make ed wrat to barter; Know their strengths, weaknesses, & the balance of power; make. educaled guesses about their priorities, limits, strengins, weaknesses, outcomes, ideal, realistic fall back positions

Question 19

How do you bargain

Answer 19

‘Problem-solving is about the willingness to move
The process facilitates movement of parties towards each other.
The 6 ssistial skills of bargaining (signaling, picture painting, trading & packaging) are well worth polishing:
Brush up your awareness of signals sent by others
Be aware of conscious as well as unconscious signaling
Use phrases such as ‘suppose we .. outcomes
and’ How would it be if to create the vision of
Package demands & proposals to be able to give in one area while gaining in another
Tactics, Tricks & Threats in bargaining
‘Tactic: a procedure calculated to gain some end’- Oxford Dictionary
Some tactics are useful, others need to be handled well. Threats need to be used with caution & responded to with care & dexterity.
Adjournment is a useful tactic. Use it for assessing offers, gaining thinking time or cooling off time, checking facts & consulting colleagues.
Don’t be intimidated by the ‘tough’ stance. Stand up.
Challenge tactics when they seem like a trick.
Don’t give in to threats unless you have no alternatives.
Remember that: if you make threats, they have to be credible, implementing them might be costly, have to be carried out to be believable & they can fuel a dispute
Dealing with the unexpected
‘Feel the fear and do it anyway’ Susan Jefferson
Unexpected circumstances, reactions, demands, ideas, co-operation or opposition can throw us off balance. Learning to activate your rapid response mechanism at such times can increase your ability to cope.
Reduce fear of the unexpected by concentrating on your ability to handle the situation.
Keep your cool in the way that suits you best
Gain time by expressing your surprise or repeating their statement back to them.
Apply your natural curiosity; don’t just say ‘no’. Also be sure of unexpected cooperation before accepting finally.
Moving through Stalemates
If mediation reaches a point where no further movement seems possible, it has reached a stalemate.
Use questions to gather new information which can help to unfasten all parties from their fixed positions
Apply a mental icepack to avoid feeling irritated or angry, while you positively look for common grounds.
Summarize both positions & remind each other of the consequences of not reaching agreement.
Address their concerns & find out why they are stalling.
Look for creative ways forward.

Question 20

What is the importance of listening skills

Answer 20

Paraphrase - This clarifies any misconceptions with respect to the positions of the parties involved.
b.
Reframe - Understand parties motives and at the same time to escalates hostilities.
C.
Reflect - Understand issues and appreciate; appreciate and understand what the parties are going through.
d.
Summarise - Get clarifications and to make sure that the mediator has a good grasp of the matter in dispute.

Question 21

Deal making tips

Answer 21

Deal Making: Tips For Closing The Deal
Diagnose the Barrier:
May be strategic behaviour (unwillingness of one or both sides to make a best offer)
Reactive devaluation (if that were of importance to them they wouldn’t have made that offer)

Question 22

Name of deal making tip 1

Answer 22

darabio. We knaval Benchmarks and Use Deadlines: Modiations expand to filthe tian provable heathay not like to make important cadlines: Media line gun, but deadines care
Русиво о плавном поопнув о солта но ва вателіо й із пол асоболі веели пом ог
setted on the toy incentive to come to agreemeision; us hor accident that lawsuits are yommunicipate those moments, recognize yoten areaves and keep channels of communication clear, you will be able to move quicktiand wisely when you have to.
Impose a deadline at the outset of negotiation.

Question 23

Name a deal making tip 2

Answer 23

Deal making: tips for closing the deal
Change the Line-Up: If you or your team is having difcult closing a business deal, consider bringing in replacements. A new team on one or both sides may be able to look at the mediation with fresh eyes, free of any emotional baggage or personality clashes that could be holding you back.

Question 24

Deal making tip 3

Answer 24

Count Your Change: When you reach an agreement, confirm that all the key provisions have been covered so there will be no surprises. Even after you have gotten a sincere handshake, your counterpart may come back with further demands if he is having a tough time selling the deal internally. Be wary of making any unreciprocated concessions. If your counterpart asks for new terms, even if you can afford them, you should get a favourable adjustment in return. Otherwise, you are simply encouraging further requests.

Question 25

Deal making tip 4

Answer 25

Let them Brag (Building a Golden Bridge): To get a deal ratified, you may have to make your counterpart look good to his constituents. This is not a question of virtue. If the other side loses face, he may be tempted to retaliate and spurn a deal that, by all rights, he should accept. If someone’s agreement comes grudgingly, getting him to deliver on his promises may be like pulling teeth. For example, in collective bargaining, the management often prefers it when the union makes an offer that the company can accept, rather than vice versa. Appearing weak is less of a concern for management than it is for the Union’s elected agents. Union officials can then say to their membership: “we got the company to accept our proposal”, rather than, “Here is what we finally accepted”. This involves allowing the other side; make a graceful exit - the diplomatic art of letting others have your way.

Question 26

Deal making tip 5

Answer 26

Most important deals require written contract. Whatever you have gained through artful negotiation will go down the drain if the understanding you reached is poorly reflected in formal documents. The technical side of executing an agreement isn’t glamorous, but it is where many battles are won or lost. Even if you are wary, resist the temptation to let the other side write it all up. It is better and smarter to have your own lawyers and specialists to get the language right than to seek their help later in rewriting a draft that the other side has drafted.

Question 27

What is a mini trial

Answer 27

The term “Mini Trail” is used in loose terms because a Mini Trial is not a trial per se. A “mini-trial”, otherwise called an “information exchange”, resembles an abridged court case but without live evidence.
A Mini Trial is a form of evaluative mediation process which assists the parties to a dispute to gain a better understanding of the issues in dispute thereby enabling them to enter into settlement negotiations on a more informal basis.
Minitrial therefore does not result in a formal adjudication but is a vehicle for the parties to arrive at a solution through a structured settlement process. It is used most effectively when complex issues are at stake and the parties need or wish to maintain an amicable relationship.
Though minitrials can be arranged under rules negotiated by the parties, they usually conform to procedures used by facilitators of ADR. The parties sign an agreement consenting to a minitrial and then each chooses a management representative to sit on the panel. These representatives have the authority to negotiate a settlement. The parties also select a “neutral adviser” to sit on the panel. The adviser must be independent and impartial, as this person will moderate the minitrial. If the parties cannot agree on a neutral adviser, the ADR facilitating agency may make the selection. The parties pay an equal share of the adviser’s fees and bear their own minitrial costs.

Question 28

Getting Started with Mini-Trial

Answer 28

matter by Trial process is initiated with an agreeman usually in wilting) to resolve the Neutral Ad Mior Trial, The partes may oilther reement (usually in an individual to be the Neutral Advisor or ask an ADR organization to appoint a neutral Advisor for them. disputes trial, a development in ADR, is finding its greatest use in resolving large-scale. disputes involving complex questions of mixed lawreal fact, such as product liabilly. massive construction, and antitrust cases, in a mini-friandach party presents its case as in a regular trial, but with the notable difference that ted case is “tried” by the parties themselves, and the presentations are dramatically abbreviated.
In a minitrial, lawyers and experts present da yadorevia version of the case to top management of both parties. Often, a neutral adviser enseetimes an expert in the subject area sits with management and conducts the hearing. After these presentations, top management representatives by now more aware of the strengths and weaknesses of each side try to negotiate a resolution of the problem. If they are unable to do so, they often ask for the neutral adviser’s best guess as to the probable outcome of the case. They then resume negotiations.

Question 29

Advantages and Disadvantages of mini trail

Answer 29

Advantages of Mini-Trial
Mini trials are a good method for resolving disputes in which the underlying law is settled.
Mini trial can give high level corporate executives an opportunity to become involved in resolving a dispute at an earlier stage than usual in litigation, potentially saving the corporation significant time and money.
The high-level corporate executives hear each other’s side of the story (perhaps for the first time), not through their own counsel’s words, but directly from the opponent. This can deepen their understanding of the problem and its roots, and possibly clear up any misconceptions or misunderstandings as to the other side’s actions and positions.
Other advantages to mini-trials are similar to those of other ADR processes, e.g., their confidential nature, the preservation of business relationships, etc.
Disadvantages of Mini-Trial
Mini-trial should not be used when the underlying legal issues are uncertain or when they want to create legal precedent for other cases.

Migation or aroy las oxpensive because if parties fall to settle, the matter will proceed to Adrein-trial could be considered as a dry run for a later court trial and this may give the other Surina dhance warning of future trial strategies a later courtaritevidence aready disclosed during the mini trial.
However it has been argued that a dry run also allows parties to weed out unimportant, collateral or technical problems that may be obscuring the real dispute and to eliminate areas in which the parties are in agreement and even if the dispute goes to trial before a judge and jury, parties will then focus on the issues that were argued during Mini trial, thereby saving time and money in the trial.

Question 30

The goal of Neutral evaluation

Answer 30

Enhance direct communication between the parties about their claims and supporting evidence
Identify and clarify the central issues in dispute, assist with discovery and motion planning or with an informal exchange of key information provide an assessment of the merits of the case by a neutral expert and a “reality check” for clients and lawyers facilitate settlement discussions, when requested by the parties

Question 31

What is the neutral Evaluation process

Answer 31

The evaluator, an experienced attorney with expertise in the case’s subject matter, hosts an informal meeting of clients and counsel at which the following occurs:
Each side – through counsel, clients or witnesses - - presents the evidence and arguments supporting its case (without regard to the rules of evidence and without direct or cross-examination of witnesses)
The evaluator identifies areas of agreement, clarifies and focuses the issues and encourages the parties to enter procedural and substantive stipulations
The evaluator writes an evaluation in private that includes:
an estimate, where feasible, of the likelihood of liability and the amount orange of damages
an assessment of the relative strengths and weaknesses of each party’s case and the reasoning that supports these assessments
The evaluator would then present the evaluation to the parties, who may then engage in settlement discussions facilitated by the evaluator, often in separate meetings with each side
The evaluator has no power to impose settlement and does not attempt to coerce a party to accept any proposed terms. The parties may agree to a binding settlement. If no settlement is reached, the case remains on the litigation track.

Question 32

What is valuation

Answer 32

Valuation is often resorted to when parties dispute on issues of quantitative and qualitative natures, where there is a disagreement and an independent expert valuer is commissioned to measure the parameters of the subject matter in dispute and submit a report to the parties. It should be noted that all the valuer does is just to provide information based on his expertise and that his report is not binding on the parties.

Question 33

Private Judging or rent a judge

Answer 33

Here, parties enter into an agreement to hire a Private Judge (a Retired Judge) to try their dispute in private
In Countries where there are applicable laws, the appointment of the Judge will be in accordance with the provisions of the law. For example, in USA, the authority of the Judge comes from the US Commercial Arbitration Act. In other instances, parties may define procedures governing proceedings before the private Judge (such as time and place of proceedings).

Question 34

Process stages in private judging

Answer 34

The judge conducts a Preliminary Planning Meeting to:
Identify the issues in dispute.
Specify an efficient process for dealing with the matter.
Determine information and evidence requirements and how they will be presented.
Set a process timetable, including hearing dates.
Agree the costs of the process.
Submissions and reports are prepared and exchanged, in accordance with the agreed arbitration plan and timetable.
The judge then conducts the Formal Hearing, which may run for anything from a half day upwards.
After hearing all the arguments and reviewing all the evidence, the judge concludes the proceedings by producing a written “Award”, which is legally binding on the parties. The Award is like a simplified court judgment- it states the judge’s decision, along with brief reasons
The parties can agree to be absolutely bound by the judge’s decision, excluding all rights of appeal, if they want to make the process completely final. Otherwise, they have rights to appeal the judge’s decision directly to Court.

Question 35

Benefit of private judging

Answer 35

Private Judging is a particularly effective process where parties require an experienced, objective and highly credible third party to make a final and binding determination on complex factual or legal issues.
They get a decision that carries similar weight to a court’s determination, while avoiding most of the delay, cost and stress that comes with conventional litigation.
The process can save spectacular amounts of time and cost in complex commercial disputes.

Private judging typically involves disputing parties bringing in a retired judge to oversee their case. Similar to arbitration, private judging can only be done with the consent of both parties, and in most cases the parties will agree that the private judge’s decision will be legally binding. A private judge will usually be given the same powers of a court, and for the most part the hearing will resemble a typical courtroom proceeding. The main advantage of private judging over the litigation route is that the process is much shorter and more efficient.

Question 36

Disadvantage of private judging

Answer 36

It has been argued that it allows more affluent litigants evade the problems of the judicial system.
According to “Robert Gnaizda” The elite abandoning a public system in decay ensures that it will never be improved
It lures experienced jurists into early retirement to collect the combination of public pensions and private fees.
It lets corporations and other litigants shield their doings from public scrutiny. In normal civil- court proceedings, hearings are generally open to the press and public and the records are public records.

Question 37

What is Med-arb

Answer 37

Med-Arb is an abbreviation for “mediation-arbitration”. In Med-Arb, an attempt is made to resolve a dispute by agreement through mediation and if that fails, then parties proceed to arbitration, where a binding decision will be reached. The agreement to proceed to arbitration if arbitration fails is usually reached by the parties before the commencement of the mediation. Parties usually appoint the initial mediator as the arbitrator and his decision in the arbitration proceedings will be final and binding on the parties.
The real or perceived advantage is that the process will produce a resolution one way or the other and so parties will try harder to be reasonable and resolve the matter during mediation
Where the dispute proceeds to arbitration and the mediator is appointed as the arbitrator, there will no loss of time or costs in having to reacquaint a new person with the facts of the matter.
However, some people have concerns that when acting as arbitrator, the neutral person may be influenced by what was learned in confidence about the disputants’ bottom lines.
Med-arb is a hybrid, two-stage alternative dispute resolution (ADR) process. It usually involves the parties agreeing to grant a mediator power to convert automatically to being an arbitrator, and to make a legally binding arbitral award, if the mediation fails to result in a settlement of the relevant dispute. The arbitration phase of the process will be legally binding, and the arbitrator’s award will be enforceable like an award rendered in standard arbitration proceedings, which is usually advantageous.

Question 38

Med-arb compared and contrasted with Arb-Med

Answer 38

proceeds as follows:
the claimant commences an arbitration
2. the tribunal (sole arbitrator or panel) is appointed but immediately stays the arbitration
3.
4
the parties then mediate
if the mediation is successful, the tribunal makes a consent award recording the

Question 39

What Arb-Med

Answer 39

9.12 Arb-Med
“Arb-Med” came up to try and overcome the concerns some people have with “Med/Arb”.
The neutral person acts first as arbitrator, receiving from the disputants’ only information that they exchange with each other. The arbitrator makes a written decision. This is not revealed to the parties unless and unless the next stage (mediation) is unsuccessful.
Although the risk of the decision being influenced by confidential material is eliminated, this is done at the cost of the arbitration part of the process, especially if the mediation is successful, because in that event the decision never sees the light of day.
In arb-med, the process starts with an arbitration proceeding, after which a non-binding arbitration award is issued. The Arb- Med model tackles the issue of bias as parties start off with the arbitral process and a stay of proceedings is sought to give parties time to further discuss and negotiate the issues in mediation.
The outcome is dependent on whether parties can agree reach an agreement or divert back to the arbitrator to make an award. A similar approach taken is for the parties to present their individual cases before the sole Arbitrator who will make an award but will not publish it (i.e. share with the parties.) subsequently parties go into mediation and the outcome as mentioned earlier is dependent on whether parties can come to an agreement or if they reach an impasse the Arbitrator will unseal his award and it will become binding on both parties