Podcast: How arbitration and ADR can be used together

In this short podcast Professional Support Consultants Hannah Ambrose and Vanessa Naish look at how Arbitration and Alternative Dispute Resolution (ADR) can work together. The podcast considers how parties can agree to an ADR process in addition to or alongside arbitration (looking at approaches in different jurisdictions and under different arbitral institutional rules), before turning to the complexities of drafting escalation clauses in contracts. Finally it looks at how a successful settlement should be formalised to be most effective and enforceable.

For more on this topic, see our guide ‘Use of mediation in arbitration‘, from our popular series of ADR Practical Guides.  (The full set of ADR Practical Guides can be accessed here – including a business-friendly introduction to mediation and guides to preparing for a mediation).

For further information, please contact Hannah Ambrose, Vanessa Naish or your usual Herbert Smith Freehills contact.

Hannah Ambrose
Hannah Ambrose
Professional Support Consultant
+44 20 7466 7585
Vanessa Naish
Vanessa Naish
Professional Support Consultant
+44 20 7466 2112

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).

Study by Singapore Academy of Law suggests strong preference for arbitration over mediation

The Singapore Academy of Law (SAL) has published the results of its study on preferences for the choice of governing law and jurisdiction by those involved in cross-border transactions in Singapore and the region (the Study). 

The Study reflects the views of around 500 commercial law practitioners and in-house counsel who have involvement in cross-border transactions. In terms of dispute resolution processes, the key outputs are:

  • 71% of respondents indicated that arbitration was the favoured method of dispute resolution, compared to 24% for litigation and 5% for mediation. Mediation's low score is perhaps surprising and the outcome may reflect the way the Study question was framed, given that mediation is often attempted within the framework of litigation or arbitration and should not be selected as a sole method of dispute resolution,given that it may not reach a determinative outcome.
  • Enforceability of decisions was cited as a key priority by respondents. Given the importance of enforceability in choosing litigation or arbitration, the introduction of the hybrid Arb-Med-Arb protocol by the Singapore International Mediation Centre in partnership with the SIAC may encourage the use of mediation in Singapore in the future. As described in our previous blog post, the combined process can result in a consent award enforceable under the New York Convention 1958.
  • All industry sectors represented by the Study showed a strong preference for arbitration.  Consistent with our own experience, the highest scores were shown in the Construction and Oil & Gas sectors, at 84% and 82% respectively. The highest score for litigation was the Banking and Finance sector at 30%. 

Click here to read more on our Arbitration Notes blog.

ADR Practical Guide No. 6: Use of Mediation with Arbitration

We are pleased to launch the sixth guide in our series of ADR Practical Guides, designed to provide clients with essential practical guidance on various processes falling under the banner of alternative dispute resolution (ADR), with a particular focus on mediation.

Guide No. 6: ‘Use of Mediation with Arbitration’ provides a brief description of how mediation and other ADR processes can be used with arbitration, including some key points to consider at the stage of drafting dispute resolution clauses and during the arbitration process.

Previous guides in the series can be found on our ADR webpage, together with other materials including our award-winning research into how corporates use ADR.  The other guides include: