Alternative Dispute Resolution (ADR)

Business dealings don’t always work out as planned. From time to time suppliers fall out with their customers, contractors fail to deliver what they have promised, and partners disagree on strategy: disputes break out and the litigation lawyers sharpen their quills. Fortunately not all commercial disputes end up in the law courts. Contracting parties have learned to plan ahead in the event that differences may occur. Clauses are written into contracts to provide and even require alternative means of resolving disagreements. This five day programme will look at some of the most popular methods of alternative dispute resolution. We will look at the underlying principles of facilitated negotiation which are adopted by an independent third-party, such as a mediator. We will examine the role of private courts using independent arbitrators to determine who is at fault and who should be compensated. We will consider how arbitration awards can be enforced through the national courts in foreign jurisdictions and why arbitration is so popular as a means of settling a dispute. Delegates will have the chance to practice tools and techniques to assist them when preparing for and managing commercial disputes.

• Legal managers
• Finance managers
• Commercial managers
• Claims managers
• Supply Chain, Procurement and Purchasing Managers
• Contract Managers, Engineers and Analysts
• Anyone involved in the management of commercial relationshipS

• To describe alternative methods of resolving commercial disputes
• To distinguish between forms of ADR that give a binding decision and others that facilitate agreement between the parties
• To evaluate strategies for resolving conflict
• To prepare their organisation to participate in a dispute resolution process
• To plan a negotiation, including considering contingencies in the event of failure
• To apply negotiation techniques to typical commercial disputes
• To appreciate the appropriateness of different behavioural styles of negotiation
• To consider the merits of using an intermediary to facilitate a win-win result
• To manage conflict through a negotiated approach
• To achieve good outcomes to resolve contract disputes

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

Arbitration

1. Arbitration principles
2. When is arbitration appropriate?
3. Selecting and appointing the arbitrator and the forum
4. Strengths and weaknesses of arbitration
5. What happens if we lose?
6. Recognition and enforcement of arbitration awards
7. Arbitration variants - Pendulum arbitration; Med/Arb and Arb/Med
8. Class exercise: Preparing for arbitration

Negotiating solutions to disputes

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

Mediation

1. Mediation fundamentals
2. Facilitated negotiation and neutral intermediaries
3. Appointing and Working with a mediator
4. Process and Stages of a mediation
5. Reaching a settlement agreement
6. Class exercise: Mediating a dispute

Other Dispute Resolution mechanisms

1. What are the other choices and when might we use them?
2. Conciliation
3. Settlement conference
4. Expert determination
5. Neutral evaluation
6. Dispute Review Boards
7. Course summary and final exercises