Early Neutral Evaluation (ENE) (non binding)
An independent third party considers the claims made by each side and gives an opinion, either on the likely outcome or on a particular point of law. The opinion is usually non-binding (unless otherwise agreed). The process is designed so the parties can then use the decision of the third party neutral to decide how they wish to proceed with the case. It is a valuable process if you are attempting to get a realistic assessment of your chances of success at trial.
Baseball Arbitration (binding)
Although arbitration is generally not considered to be an ADR process, baseball arbitration is a process more akin to “baseball expert determination”. The parties exchange final figures at an early stage and indeed usually before a tribunal is constituted. Those figures are then binding on the parties throughout the arbitral process, and the tribunal may or may not be told about them (the latter being termed “night” baseball). The key point is that it is the figure of the party which is closest to the award made by the tribunal which becomes the binding figure payable. Less frequently baseball arbitrations involve non-monetary remedies, with the tribunal assessing whose final offer is the preferable ultimate award.
Executive Tribunal (non binding)
This process, sometimes referred to as a “mini-trial”, usually involves a panel which consists of senior management representatives from each party and a neutral third party or mediator who has been chosen by the parties. The participants may or may not have been involved in the day to day aspects of the dispute. The senior management representatives listen to a short presentation of the other party’s case.
This process assists each side to understand the commercial objectives of the other party and provide an understanding of their own case with the intention that with their increased knowledge they will take more informed steps to resolve the dispute. The emphasis is on direct presentation followed by negotiation and the whole procedure is informal and non-binding unless a settlement is reached. This process is rarely used in the UK but is more common in the USA, where it originated.
Med-Arb/Arb-Med is a combination of mediation and arbitration. In med-arb mediation is attempted first, and if no agreement results, the dispute will go to arbitration, where a binding decision will be issued. In most cases the same person acts as mediator and arbitrator.
A recent development of the med-arb process is where the parties present their case to the arbitrator, who does not reveal the outcome/decision, but then acts as a mediator to allow the parties a chance to settle the case with the threat that the award will be handed down if no settlement is reached (arb-med). Usually timescales are very short and this process is still very rare due to the costs of arbitrating before the mediation.
Dispute Board (binding/non binding)
A dispute board (sometimes referred to as dispute review board or dispute adjudication board) typically comprises three independent and impartial persons selected by the contracting parties. It is most often utilised in the construction, engineering and infrastructure industry but can be found in other sectors. The significant difference between a dispute board and most other ADR techniques is that a dispute board is appointed at the commencement of a project. The board will undertake regular on-site visits and be actively involved throughout the project. When a dispute arises, and depending on the contract, the dispute board may be empowered to make non-binding recommendations or decisions (which are binding until an arbitral award or court judgment states otherwise). Combined dispute boards are hybrids which can issue both recommendations and decisions.
For more details click here to read our ADR practical guide “Common ADR processes – an overview”.