Consultation on the relationship between courts and ADR in Europe

A consultation has been launched  "to consider the concerns that have arisen in Europe as a result of the exponential growth of numerous different forms of alternative dispute resolution".  

The paper, entitled "The Relationship between Formal and Informal Justice: the Courts and Alternative Dispute Resolution", is a joint project by the The European Law Institute and the European Network of Councils for the Judiciary (the latter chaired by Sir Geoffrey Vos, Chancellor of the High Court).

The consultation's focus is on how the interface between courts and ADR processeses is working in Europe. It seeks views on whether identified concerns can be addressed by developing statements of best practice or models, to be followed by both courts and ADR providers when assessing what dispute resolution process should be adopted in a particular dispute.

The interface between courts and ADR processes is of course a key issue being discussed more globally in the ongoing Global Pound Conference (GPC) series, and it will be interesting to see how the data and commentary generated out of the GPC (following the final event in London in July 2017) compares to the conclusions from this consultation (the final report on which is planned for the end of 2017). 

Continue reading

Leave a Comment

Filed under ADR institutions, Government proposals and consultations

South Africa: Proposed new rules for mediation (to the exclusion of arbitration) in investor-state disputes

Draft Regulations have been published by the South African government setting out rules for the mediation of investor-state disputes (to the exclusion of international arbitration).  

Click here to read our Johannesburg office's bulletin, which highlights concerns with the proposed developments and calls for the Regulations to be brought into harmony with international best practice, such as the International Bar Association's Rules for Investor-State Mediation (which recognise mediation as a supplement, not a substitute, for international arbitration).

Leave a Comment

Filed under Mediation (General), Middle East & Africa

What do users of dispute resolution processes need and expect? Efficiency is key

With the first eight Global Pound Conference (GPC) events complete and more than 650 delegates sharing their views so far, some interesting data has started to emerge, particularly regarding the views expressed by those participating in the GPC as 'Users' of dispute resolution processes – in-house counsel and business executives whose organisations find themselves embroiled in commercial disputes.

One of the key themes to emerge from the Users at GPC events so far is that their highest priority when selecting which dispute resolution process to use (eg courts, arbitration, mediation or other ADR) is efficiency. They rate efficiency higher than they do the advice given by their advisors, which is revealing.  It reflects the extent to which commercial conflicts are a distraction from the day to day activity of Users, namely commerce.

Continue reading on our ADR Hub here.

 

Leave a Comment

Filed under Herbert Smith Freehills news

Herbert Smith Freehills launches ADR Hub

Herbert Smith Freehills has launched a new Alternative Dispute Resolution Hub (at www.hsf.com/adr).  

Sitting alongside our ADR Notes blog (which keeps subscribers up to date on legal and other developments in the ADR landscape), the ADR Hub features the latest thinking and in-depth commentary on the role ADR can and should play within dispute resolution and how it can be used to greatest advantage.

In particular, the ADR Hub will include insights from across our global network arising out of the ongoing Global Pound Conference (GPC) series. With seven events concluded in 2016 and over 30 more planned across the globe for the next six months, the GPC will be amongst the most important events in dispute resolution in 2017, with the data and insights gleaned from the series having the potential to influence dispute resolution practice and policies in the coming years.

In addition to regular commentary, the ADR Hub also brings together some of our most in-demand published resources, including:

  • Our 'business-friendly' series of ADR Practical Guides, giving practical guidance on how to make the best use of ADR mechanisms in a variety of contexts
     
  • Regional spotlights such as our 'ADR in Asia Pacific' series
     
  • Client research studies into how ADR is (and isn't) being used effectively by corporates, and a toolkit for those looking to optimise the way their organisation employs ADR in their dispute management processes. 

 

 

Leave a Comment

Filed under ADR, Herbert Smith Freehills news

Costs judge finds information from mediation is admissible when considering costs consequences of settlement

A costs judge has held that information about a party's costs provided for the purposes of a mediation could be used as evidence when considering the cost consequences of a subsequent settlement: Savings Advice Limited v EDF Energy Customers Ltd [2017] EWHC B1 (Costs) 

Documents produced for the purposes of mediation are generally covered by without prejudice privilege and, subject to limited exceptions, cannot subsequently be used as evidence. In the present case the costs information was provided in emails headed "without prejudice save as to costs", so it is perhaps not surprising that the costs judge concluded it could be used as evidence in subsequent cost proceedings.

However, other aspects of the reasoning for the decision are more surprising and arguably not supported by existing authorities regarding the without prejudice rule. In particular, the costs judge held that the costs information was not in any event covered by the privilege because it was a statement of pure fact rather than an admission or concession. Such distinction has been rejected in previous cases on the basis that requiring parties to a negotiation to constantly analyse whether they are making admissions or factual statements would undermine the privilege's purpose of enabling parties to speak freely in settlement negotiations (see for example the decision of the House of Lords in Ofulue v Bossert [2009] UKHL16, considered here).

While the decision will not necessarily be followed in future cases,  it serves as a reminder that parties should be aware of the limitations of without prejudice privilege and the circumstances in which information provided during mediation may be used in subsequent litigation. As a practice point, parties should ensure that they are clear as to what is intended when they provide or receive information  'without prejudice save as to costs' in the context of a mediation.

Gary Horlock (associate) and Jan O'Neill (professional support lawyer) in our dispute resolution team consider the decision further below.

Continue reading

Leave a Comment

Filed under Confidentiality and privilege, Costs, Mediation (General), UK

Asian Dispute Review promotes Hong Kong’s groundbreaking Global Pound Conference

Asian Dispute Review, sponsored by the Hong Kong International Arbitration Centre, Chartered Institute of Arbitrators, Hong Kong Institute of Arbitrators and the Hong Kong Mediation Council, has published an article on the Global Pound Conference Series, and what to expect from the Hong Kong event.

The one day Global Pound Conference is coming to the Hong Kong Convention and Exhibition Centre on 23 February and promises to be one of the major dispute resolution conferences of 2017. Delegates from across Hong Kong's dispute market will vote via GPC's voting app, and participate in real time debates by world class speakers.

The full programme is here. Register here before 21 January and benefit from the early bird rate of USD 150.

Herbert Smith Freehills is proud to be a founding sponsor of the Global Pound Conference Series and lead organiser of the Hong Kong event.

Leave a Comment

Filed under ADR, Asia, Herbert Smith Freehills news

Shape the future of dispute resolution: Global Pound Conference moves to Hong Kong

Hosting more than 5,000 corporate and disputes professionals in a series spanning 40 cities across 31 countries, the Global Pound Conference (GPC) is a global conversation about how to improve the resolution of commercial disputes in the 21st century.

Using a unique electronic interactive format, which has been dubbed the blueprint for future conferences, delegates from key stakeholder groups vote anonymously on standardised questions, debated in real time by world class moderators and panellists. The data will be distilled into a global report and white paper, heralding a new era of dispute resolution.  

If you are involved in contentious work (whether litigation, arbitration, ADR or investigations) we invite you take part in this historic series. Click here to find an upcoming GPC event in a city near you and to access the voting results from the events that have taken place to date – in Singapore, Lagos, Mexico City, New York, Geneva, Toronto and Madrid.  To stay up to date on all the conversations and developments throughout the GPC Series, please join us on LinkedIn​.​​

On 23 February 2017, the series moves to Hong Kong. With the backing of leading corporates, institutions and the Department of Justice, the Hong Kong event is set to be a major dispute resolution conference of 2017. General counsel, regional heads and senior executives from leading corporates will share their views, alongside leading international judges, arbitrators and mediators. The Hong Kong event will also include a keynote address from Secretary for Justice, Rimsky Yuen, as well as a closing address from Chief Justice Geoffrey Ma. Click here to access the full programme and here to see the invitation.

Find out more and register your place.

Date:

Thursday, 23 February 2017 

Time:

9am – 6pm, including networking, sit-down lunch

Venue:

The Hong Kong Convention and Exhibition Centre (HKCEC)

Registration fee:

Early bird: US$150 until 31 December 2016

Regular:

US$220

 

Leave a Comment

Filed under ADR institutions, Asia, Herbert Smith Freehills news

ADR in Asia Pacific – Part 3

Further to our earlier posts (here and here) highlighting material from our recently updated Guide to Dispute Resolution in Asia Pacific, we now feature in part 3 the responses from New Zealand, Pakistan, Philippines, Singapore, Taiwan, Thailand and Vietnam to the question whether parties to litigation or arbitration are required to consider or submit to ADR procedures before or during proceedings.

Continue reading

Leave a Comment

Filed under ADR, Asia, Mediation (General), Refusal to mediate

Updated 2017 CEDR model mediation documents and rules

At a launch on 24 November 2016, the Centre for Effective Dispute Resolution (CEDR) released updates for all of its main model mediation documents and rules. The updated documents are available on the CEDR website here (requiring free registration), including:

  • ADR contract clauses
  • ADR Notice
  • Mediation Procedure
  • Mediation Agreement
  • Settlement Agreement / Tomlin Order
  • Code of Conduct for Third-party Neutrals

(CEDR also provides employment mediation contract clauses as well as model procedure documents for other ADR processes, including expert determination and early neutral evaluation.)

The key changes from the 2016 versions of the documents are summarised in the accompanying notes, here.

Continue reading

Leave a Comment

Filed under Uncategorized

Singapore: proposed new legislation to encourage mediation

A Mediation Bill has recently been put before the Singapore Parliament with a view to encouraging the growth of mediation in the jurisdiction.  The three key proposals in the Bill (which echo similar provisions in the EU Mediation Directive and various other mediation laws around the world) are:

(i)   A power (though not a duty) in the courts to stay proceedings in favour of mediation agreed by the parties

(ii)  A mechanism for settlement agreements reached at pre-litigation mediations to be recorded and enforced as court orders; and

(iii) Confirmation of the confidentiality of mediation communications.

Read more detail on the proposals here.  

 

Leave a Comment

Filed under Asia, Confidentiality and privilege, Government proposals and consultations, Mediation (General)