Our London ADR team has launched the sixth guide in their 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.
This guide should be read alongside our recent ADR in Asia Guide. There, we summarised the use of MedArb/ArbMed in Asia.
In some jurisdictions, particularly those based on civil law traditions such as the PRC and Japan, arbitral tribunals have long offered to help the parties settle (or ‘conciliate’) their dispute as a matter of course at some point during the arbitration. When an arbitral tribunal raises the possibility of mediation, particularly towards the end of the arbitral proceedings, the risk of losing the arbitration can be helpful in focusing the parties’ minds on a reasonable settlement. ArbMed is provided for in the laws and procedures of certain other Asian jurisdictions (notably Hong Kong and Singapore), but the process is rarely used. Parties with a common law background are often more reluctant to disclose their true assessment of the dispute (particularly any potential weaknesses on their side) to a mediator, given the possibility that the same individual will be required to determine their dispute in arbitration proceedings if the mediation fails. This has resulted in certain institutions enacting rules providing that the mediator(s) and arbitrator(s) should be different individual(s). The Singapore International Mediation Centre (SIMC) launched in November 2014 a new Arb-Med-Arb Protocol, but the arbitrator(s) and mediator(s) will “generally” be different individuals (unless otherwise agreed). This represents a departure from the traditional notion of ArbMed, where the arbitrator(s) also act as mediator(s). Our recent ebulletin on the new arb-med-arb procedure launched in Singapore can be found here.
Previous guides in the series can be found on our ADR webpage, together with other materials including our recent ADR in Asia Guide (focusing on mediation) in Hong Kong, and our earlier award-winning research into how corporates use ADR. The other guides include:
- No. 1: Common ADR processes – an overview
- No. 2: An introduction to mediation – what it is and how it works
- No. 3: When to mediate in a dispute
- No. 4: Selecting your mediator and drafting the mediation agreement
- No. 5: Preparing for mediation