Brown & Marriott's

ADR Principles and Practice

Fourth Edition

Dr Shirley A. Shipman LLB(Hons),

BCL (Oxon), M Phil(Oxon), D Phil(Oxon)
Principal Lecturer in Law, Oxford Brookes University

Benjamin D. Waters MA(Ed)

SolicitO/; Senior Lecturer ill Law, Canterbury Christ Church University

William Wood QC
Brick Court Chambers, London

Consultant Editor

Henry J. Brown
Solicitor, England and Wales

SWEET & MAXWELL f1~;tiJ.~)i

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v
 Foreword

When Frank Sander, Professor Emeritus of Halvard University, coined the phrase
"alternative dispute resolution" in his seminal lecture, The Varieties of Dispute
Processing, at the Pound Conference in St Paul, Minnesota in April 1976, he had
in mind the alternatives to litigation as a process for resolving disputes. When he
spoke of "the deadening drag of status quo-ism" he was referring to the
reluctance of both users and practitioners to recognise and take advantage of the
alternative processes of ADR because they, the users and practitioners, were, and,
alas, to some extent still are, immersed in the only dispute resolution process they
knew, namely litigation. His concern-plus ca change/-about congested court
lists, the heaping of pressure on the judiciaty, delays and burgeoning costs caused
him to propose entry to a multi-door courtroom where cases were appropriately
directed to arbitration, early neutral evaluation, mediation or negotiation. Four
decades later, Lord Dyson MR was able to write in his foreword to The Jackson
ADR Handbook, "ADR is now a well-established part of every lawyer s practice.
... The effective promotion ofADR is unquestionably in the public interest. " ADR
can now justly be seen to be litigation's invaluable twin. As Lord Neuberger of
Abbotsbury explains:

"Promoting and facilitating the use of ADR for those cases where it will be of
genuine advantage to the parties, because of, for instance, its informality, the
flexibility of its processes and the availability of remedies not available to the
litigation process, is of benefit not only to those litigants but also to the justice
system. It is of benefit because it ensures that only those cases which truly call for,
truly require, formal adjudication utilise the limited resources available to the
justice system."

Leading the way in educating users, lawyers, judges and even the government
and, of course, the mediators themselves is this towering work, now in its fourth
edition. It is a privilege to have been invited to write this foreword.
No one can sensibly doubt today that mediation is a vital tool in the
administration of justice. Commercial arbitration in the City of London has won
world-wide acclaim and is flourishing. After a slow start, Family practitioners are
beginning to see the merits of Family arbitration, especially where the parties
wish for privacy. Forms of early neutral evaluation have their place in the
Technology and Construction Court with its adjudication process and in the
Family Courts with their Financial Dispute Resolution hearings. The biannual
review conducted by CEDR confirms the growing use and value of civil
mediation. Family justice had to acknowledge the benefits of early use of
Mediation Information and Assessment Meetings (MIAMs). In the Employment

vii
 FORbWOIW I'ORI ;WOIW

Tl ibunuls the SlICCl.!SS Ilf J~arly (ullt:1iiatlO11 11;1. . heen slHrtllJlg in lcthll·jn I the Shirley Shipman, and a vastly experienced practitioner, Bill Wood QC, together
wurklouu for that rribunlli. In lIu: rribunaJ system gl:Jlclully more nntl mnrc with (he doyen of the mediation world, Henry BrowJl, ellsure Premier League
specia list mcdiation schcll tcs ar~ being pr~nlOtcd\ for example. for .o;;pcci<l l status for the fourlh editiOIl of ADR: Principles {fnd P/'{/ctice. [ unreservedly
I ducali H1 Needs. The NBS [ jllg~lli(11l AlIlh )lIty hus 11ludc huge suvlIlgs JIll'Ol)\S commend this book to YOll.
by promo ting the early lise of II1cdin tiol1 111 dini~al negligcn~c cuS\.:~, The
possihililics till Rcstllliltivc Justil.:c to l:C~I1CC the prISM popll l~lf l nn. alld more Sir Atall Ward
importantly, to reduce Ihe mte 01 rCCld lvlsm urc graduully ~CgIl1 11 1 1l~ \I) t1awn. Ch:lirmall of the Civil Medi:ltioll Council
Whul not :-.0 long ago miglu have been regarded a~ an esoteric abcnallon IS now .June 2())X
accept ecl in oLi r law schno b; us H proper and necessary subject in its own right. A
good s lart with the young is being madc by introducing peer group mediat ion in
ow' schoo ls. Thus the 1<U1dscape [or thc usc of mediation cont inues to w iden,
What more needs to be done? All depmtments of govemment can be reminded
of the "Mediation Pledge" given by the Lord Chancellor, Lord Irvine of Lairg.
Self-interest should prompt overworked, stressed trial judges to be more robust in
staying cases in their list for the parties to pursue mediation. The Court of Appeal
should gird its loins and review Halsev v Milton Keynes General NHS Trust
[2004] 1 WLR 3002 and express whole-hearted support for the enlightened views
of Briggs LJ, as he then was, in PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ
12 in preference to the Hazel Gennish views of Patten LJ in Gore v Naheed
[2017] EWCA Civ 369. Some lawyers still need to be persuaded that the client
who can live with a compromise of his claim may be a happier client than one
who has been fed with the myth that he had a humdinging certain winner only to
find him losing everything and paying his hated opponent's costs to boot. Warring
neighbours should be told that one cannot be at peace with oneself whilst one is at
war with one's enemies. All disputants should be reminded of the saintly Nelson
Mandela's advice that if one wants to make peace with one's enemy, one must
talk to the enemy because once you begin to talk to your enemy, you can become
a partner with your enemy and as partners you can find the solution which works
best for the partnership.
What more can mediators do for themselves? Perhaps they should embrace the
desirability of some mediation for mediators, all too many of whom cling onto
control of their little patch with all the fervour of the neighbours from hell who
threaten a boundary action for the encroachment of an inch. What hope is there
for the world of mediation before it can so organise itself as to be in a position to
claim to be a profession with a proper governing body, some effective, if light,
regulation and an enforceable disciplinary code? How can it be a profession
without a single body at its head to speak for and on behalf of ALL forms of
mediation? When will we have a Mediation Council as the umbrella organisation
under which Civil Mediation, Family Mediation, Restorative Justice and the
fragment organisations offering their valuable community and workplace
mediation can all find shelter and speak with one voice?
This invaluable work shows the way. It covers all forms of ADR. It
encouragingly points out that each fonn of ADR can learn something from the
other and that strides are being made across the board to emphasise that more
unites the different branches than divides them. Lessons can be learnt from every
page. The ADR community must give thanks to the authors and the consulting
editor for this book no self-respecting mediator can be without. The work's
authority is self-evident. Two eminent mediation academics, Ben Waters and

viii IX
 Preface

In the foreword to the first edition of this book Sir Thomas Bingham, then Master
of the Rolls, wrote that we in Britain have been late starters to the field of ADR.
He observed that the book drew liberally on the experiences of other countries
from which we in the UK have over the years learnt so much. The preface to thc
first edition, however, mentioned the scepticism with which ADR as an American
import had been treated in some circles. With the arrival of the fourth edition of
this book, we can justifiably claim that ADR has come a long way in the
intervening twenty-five years. It continues to learn from other jurisdictions and
evolve, but it is true to say that ADR in the UK has, in its various forms, gained
traction and become 1U0re accepted as palt of the mainstream of dispute
resolution. Processes such as arbitration, mediation, adjudication and ombudsman
are undoubtedly becoming more widely used as a replacement for (not simply an
adjunct to) the fonnallitigation processes. The "A" in ADR can now arguably be
signified as "appropriate" rather than "alternative" in terms of dispute resolution
process choice. Although reference is made to other jurisdictions throughout this
book, the overseas influence is less evident in the new edition and is perhaps
indicative of the distinctive identity which ADR has created for itself in the UK.
Since the first edition, the UK has witnessed three major civil justice reviews,
two reviews of legal education and a detailed review of ADR by a Working
Group of the Civil Justice Council. Not to mention the legislation (including the
Access to Justice Act 1999 and the Legal Aid Sentencing and Punishment of
Offenders Act 2012 (LASPO)), which has in various ways had a profound impact
on attitudes and approaches to dispute resolution generaily. Access to justice in
tenns of achieving dispute resolution for civil and family disputes has been
compromised by government policy over the past decade. Prior to publication of
this book's third edition, Lord Justice Jackson's Report: Review of Civil
Litigation Costs, published in 2009, included a review of case management
procedures with regard to litigation costs and funding. Jackson consulted widely
and compared the costs regime in England and Wales with those of other
jurisdictions. Many of his recommendations have been realised through primary
legislation and, in particular, Pt 2 of LASPO which abolished the Legal Services
Commission and replaced it with a Legal Aid Agency now administered by the
Ministry of Justice. As a result, legal aid has been further restricted and
controversially withdrawn from areas such as private family law. The only
circumstances in which a party involved in a relationship or marriage breakdown
might be eligible for legal aid assistance now is where issues of domestic
violence or abuse exist. Public funding does however currently remain available

Xl
 ..
PREFACE

I I " u 11:.1' been greatly Lord Briggs ' Intelim and I;illal reports ollilis Civil Courts Stillcture Revicw
for fhmi ly mediation, Ncvcrtlll; less, Ihe SeOrl; (l egn.1I 'i . .t
nll.rro~ved to the extent lhal few urea!> rel1lain c ligibk Itn cIvil !egul <111.1. slIppm
" sct Ollt his vision for <III online court in which ADR is prompted and
,. I til'I; dispute reso lu tion cont llluum a encouraged from thc outset and, in the middle stage Tier 2, " Case Officer
. mphas lslOg •
ADR S lI11portnncc W 'tl,' I II , • •
. L I J .', J. cks()lI 's reJll1ll was resc[ cd for ADR .JlIU lis guides the partics in1l1aking appropriate ADR choices. The Money Claims
who k chapter 01 ore ustlC <I • • ' . ' '. , • I' Online system currently being dcveloped and trialled is the first step
• . . , . /. C'IVI' J dlsl1ulCS 111 Ih UK rIllS IIIcludcd t 'e
utility 1Il the rcsO uti n o . . ' .' . . . . towards the implementation of that approach .
•1 ' II I '
rcco m lTIenuatlon 1U .1 ~cr, I'otl ' "aml)(l
s v, lgn to ensure lhal
. ,III IlIlg,ll lCH1 Inwyers lind
judges ur c pn)pcrly infol1n d ab01lt Ihe benefi ts w lllch DR _can ~mt1 g a lld t~lut The Final Report of the Civil Justice Council's ADR working group is
'Ihe public and 'mull businesses should h ." Iclted to l ~lC. bene ilis 01 ADR. Whtl ~ 1 awaited but its work and its interim report have already generated
perhaps Ihere is growing ADI<. lIwu rellCSS 111 Ihe UK. It Is (lr 'uahle th:ll Juckson s significant discussion over compulsion and the current measures for the
vision ill this regard rCl1la im; to be rtllfilled . . ~h e rcco mmc nd a llO~ that an encouragement of ADR.
authoritative handbook should be prepared, explaining clearly and concisely what The new Ch.IS ref1ects the fact that Ombudsman referrals (both in the
ADR is and giving details of all reputable providers of mediation, has however public and private sectors) have increased significantly, making this
been adopted and the Jackson ADR Handbook, by Blake, Browne and Sime, first probably the most-used ADR process in the UK. Its range and usage in a
published in 2013, is a definitive practical guide to the use and operation of ADR, number of different fields have extended and it has also benefited from the
with a particular focus on mediation. development and integration of ADR schemes.
Mandatory mediation continues to be debated, but no significant changes have The UK's Brexit decision will inevitably impact on dispute resolution
been made in that regard. There have, however, been important changes in the processes, for example with regard to EU Directives. While the details of
area of private family law in relation to dispute resolution. The Mediation this cannot yet be anticipated, some preliminary consideration is given to
Infornlation and Assessment Meeting (MIAM) was initially introduced as being this in Ch.22, Future Directions.
an expectation for parties in marriage or relationship breakdown seeking a COUl1 In Ch.22 we acknowledge that ADR is becoming increasingly integrated
order (to deal with the financial and/or children arrangements) to meet with a into legal education and training in the UK and many other countries, and
trained family mediator, first to learn about mediation, and secondly to see if they this edition has attempted to produce a more rigorous academic approach to
are suitable for it. Since April 2014 this has become a requirement. In the area of the way it is presented, making it useful to academic institutions while at
employment law, updated Tribunal Rules introduced by secondary legislation set the same time maintaining its practical and pragmatic approach considered
out a new duty for the Employment Tribunal to encourage the use of ADR, so valuable to practitioners. Important changes to solicitors' education and
including ACAS conciliation, mediation and judicial mediation. training are about to occur with the introduction of the Solicitors
Extension of the MIAM principle to the county courts has been under Qualification Examination. This is impOItant for this book As Ihe proposed
consideration by the Ministry of Justice, by making mediation a mandatory syllabus, if implemented in its current form, includes aspects of di pute
requirement in small claims disputes, with a widened jurisdiction from £5,000 to resolution, which will be a legal education requirement for lhe first time.
£10,000 or perhaps £\5,000 but this has not materialised. However, we do
acknowledge that HMCTS has expanded and centralised its Small Claims We should explain our new authorship of this fourth edition. Following the
Mediation Service. All cases with a dispute value of up to £10,000 are now death of Arthur Marriott in 2015 and Henry Brown's retirement from mediation
automatically referred to mediation, without judicial intervention, where all practice, Henry and the publishers asked us to take over as co-authors on the
parties request it. busi thal Henry would act as the oJlsulling Editor. We were happy to wldeltake
This fourth edition also covers various other developments since the previous thi collaborution and we arc indebted to llemy lor e ordillating the editing in a
edition was published. These include the following: consultancy capacity and for facilitating this trausilion '0 smoothly. IIenry is also
thanked tor u greater contribution Ihun perhaps originally anticipated and
Case law, practice models and organisational and regulatory structures in particularly for his contribution to tile rc-writiug of igniFicalll area oflhis fourlh
various fields, particularly civil-commercial and family mediation practice, edition.
have developed over the last seven years, and ADR processes have become There are many people we should like to acknowledge for their help and
more integrated into the judicial process. For example, in the family field support with this fourth edition. The publishing team at Sweet & Maxwell have
there has been greater recognition of the value of meeting parties separately been most helpful, and our special thanks go to Sohini Banerjee for her
and confidentially as well as jointly, where appropriate. constmctive help and support, also to Katherine Brewer and Skye O'Neill and the
Infornlation Communication Technology (lCT), other technology and rest of the editorial team. A number of people have made valuable and much
online processes have all developed since publication of the third edition, appreciated contributions to this edition, including Lisa Parkinson, Cressida
which has had an impact on dispute resolution processes. Chapter 20 on Burnett, Angela Lake-Carroll and Elizabeth Rivers. Our thanks go to all of them.
ODR (Online Dispute Resolution) has been substantially updated and We are also most grateful to Sir Alan Ward for his foreword to this edition. Sir
amplified to take account of these changes.

xii xiii
 PREFACE

Alan himself has made a hugc contribution to thc dcvcloplI~cnt of ADR in the UK
and continues to be a strong SuppOlter of the process and Its development.
0
Finally, we join with Hcnry Bro"':l~ in r:,yj~)g Iribl1l~ to thl.· la~c J1I1111
Marriott co-author of the first three edItIOns 01 lills 1( ok. \ hl1sc cmllnbul10ll lu
ADR w~s enormous. He will be particularly remembered lor hi~ ~igni1icaJ11 I' Ie TABLE OF CONTENTS
in the dcvclopmclll ::Ind refol1n f English nrbltmll n law HI; Chaill11an of' a
private gr up whose work Icd In Ihe pHssing of the Arbitration Act 1996. A
Deputy lIigh Conrt Judge for FnglHnd and Wale. a Recorder and President of
Mental Ilealth Rc iew l'ribunals, his lega l ro le and significance were marked by
his appointment as one of the two first solicitors ever to have been appointed as
PAGE
Queen's Counsel. He will be much missed and warmly remembered.
Foreword .. .. ............................................ ......... ,................. ............... .......... .. ........ vii
Preface ................................................... ............... ,................... " ..... ......... .... ........ xi
Ben Waters, Shirley Shipman and I3ill Wood QC
Table of Cases ........................................ ........................................................... xxxi
Table of Statutes ..................................... ............................... ......... ................ xxxvii
Table of Treaties and COl1ventiol1s ........................ , ......................................... xxxix
Table of Arbitration and Practice Rules .............................................................. xli
Table of Rules of court .......................................... . ....... ......... .. .. ...................... xliii
Table of Codes, Protocols and Guidance Notes ................................................. xlv

PARA
1. Analysing ADR
Introduction .............................. ...... ...... ........................... ... ... .. ......... ...... ... . 1-00 1
"Alternative" .... ... ......... .. ............... ................ .................. ........................... 1-006
"Dispute" .............................................................. ................................. ..... 1-0 13
Distinguishing dispute and conflict: the paradox ..................................1-022
Submerged issues in disputes ................ ............................... ................ .1-028
Why only disputes anyway? ....... ........... ...... ........... .. ..................... .... .... 1-031
"Resolution" ............................................................................................... 1-032
Dispute resolution or settlement? ............................. ............................ .1-034
Dispute management or other intervention .......................................... .1-039
Dispute resolution: transformation .............. .. ..... .. ................................. 1-042
Conflict resolution and other interventions .................................. ........ .1-047
ADR reconstituted ............... ...................... .......... ..................................... .. 1-052

2. An Overview of the ADR Landscape

Introduction .......... ..... .............. .. ... .. ............. ... ... ....................... .................. 2-00 1
Litigation and negotiation: the ADR symbiosis ........................................ 2-010
The spectrum of processes from consensual to adjudicatory .. ........ .. ... ..... 2-0 14
Outline of the processes .......................................... .................................. .2-016
Litigation .... ................... ................ ....... ................................ ............... ... 2-0 17
Private judging ............................................................ ............. .............. 2-018
Administrative or statutory tribunals ..................................................... 2-019
Arbitration ....... ........ ............. ....... ........................ .. ... .... ... ....... ........ ........ 2-020
Court-annexed arbitration ...................................................................... 2-021
Expert determination ........................ .. ................. .. ................................ .2-022
Adjudication ....... .............. .................................................. ,................... 2-023
Dispute Board .......................................... ............. ..... ... .......... ................ 2-024
Ombudsman .......... .................... ........... ............. ... ......... .... .. .......... ..... .. ... 2-025

XIV xv
 CONTENTS CONTL:NTS

Arb-Med ....................................... ......................... ........................... . ..2 026 Principled rcjection ............ ................ ........... .. ............... .......... ......... A 016
Med-Arb ................................................................ ... . ......... ............. . ..2027 Designing creative solutions .................................................... ......... 4 020
Evaluation/Early neutral evaluation (ENE) .......... ........................... . .2-02R Competitive theory ...................................................................... ............. 4021
Neutral fact-finding expert. .......... ....... ....... ......... ........................... .. 2-029 The "essential tension" between interest-based and competitive
Mini-trial (Executive Tribunal) ... .... ................... .......... .............. .. ... ..... .2-030 approaches ... ..... .. ........ .. .... .. .. ...... . .... .... .... ..... .. ... ....... ....................... .4-026
Negotiation (through representatives) ........................... ................... .2-031 Other theories and models ......................... .. ...... .. ........... .. ........... ............. .4-02R
' ollnb()l"dlivc pm lice .......... .. .... .... ................................................. .. 2--032 Some practical aspects of negotiation ............................... .... ..... .............. .4-033
Mediation involving eVllluntivc ·Icm<.'nt) .. ........................................ .2-033 Whether or not to negotiate ...................................... .. .... ........ .............. .4-034
Mediation (purely facilitative) .... ....... ....... ........... ......... ... ........ .. ............ 2-034 Preparation and set-up .................................................... .. ..... ... ............. .4-037
Conciliation ........... .......................................................................... .. 2-035 Zone of Possible Agreement anel the negotiation dance .... .. .... ............ .4-040
Negotiation (by patties personally) .... ............................................... ..... 2-036 Opening the negotiations .. ..... ....... .................................... .................. .4-043
Standard or bespoke processes .................. .. .......... ............................ .... .2-037 Responses to proposals .... .... .. ., .. .. ............................................. ........... .4-047
Using the standard models and designing bespoke processes ............. .2-042 Continuing the negotiations ................................... .. ......... .............. ...... .4-051
Some fUlther considerations for the development of ADR ...................... 2-046 Skills, Strategies and Style .............. .. ............. ... ..... ... ... ... ... .. .... ...... .. .......... 4-056
Power, Culture and Gender
3. ADR Philosophies and Motivation: Common Values and Power ....... ... ....................... ... ....... ... ............. .............. ..... .... ................... .4-059
Differences Culture, gender and values ......................... .. .............................................. 4-065
A broad church ....................... ................... ................................................ 3-001 Gender .............. ................. ......... ................. ................ .. .... ..... .. ... ..........4-067
Shared values and motivation .................................................................... 3-004 Values ................. ............... .......... ....... ... .. ..... ..... ........... .. ....................... .4-071
The principle of negotiated agreement .................................................. 3-006 Perceptions and psychology ................... .... .. .................... .. ... ........ ............ .4-072
Facilitating resolution ............................................................................. 3-0 12 Good Faith in Negotiation
Personal empowerment and self-detennination ..................................... 3-0 15 Theoretical Principles .......... ............ ............... .................. ..................... .4-076
Creative and flexible decision-making .................................................. 3-020 Legal Principles ........... ... ............... .. .......................... .......... ..... ....... ... ... .4-077
Potential for healing and relationship preservation ............................... 3-026 Good faith in ADR ...... ... .. ............ ..................................... .. .......... .. ...... .4-078
Maintaining ethical values ..................................................................... 3-030 Duty to perform in good faith? ............................................................ .4-081
Providing a confidential and secure environment ................................. 3-034 Good faith in the ADR context.. ....................................................... .4-086
Attributes, skills and sensitivity ..................................... ........................ 3-036 The neutral negotiation role ....................................................................... 4-090
Seeking a beneficial outcome .......................... ...................................... 3-039
Overcoming the cost and delays of litigation ................ ........................ 3-041 5. ADR and the Courts
Differences of practice and philosophy ............ ........................................ .3-043 Introduction ............... ... .......................................... ............................ ...... .. 5-001
Different fields of activity ...................................................................... 3-044 Rules, practice directions and protocols .................. .................... .. ....... ..... 5-002
Different models of practice .................................................................. 3-045 Civil Procedure Rules (CPR) .................. ....................................... ........ 5-003
Evaluative or facilitative mediation .... ........ ........................................... 3-048 Fmnily Procedure Rules 2010 (FPR) ....................................... .............. 5-006
Settlement-geared or problem-solving mediation .................................. 3-050 Pre-action protocols ............................................................................... 5-009
Transformative and related approaches ............................................... .. 3-052 Family pre-application protocoL ........................... .. ............................... 5-0 12
Other models and schools of thought ...................................... ...... ... ..... 3-054 Courts adopting ADR processes ................................................................ 5-013
Intervention and directiveness ............................................................... 3-055 Court Settlement Process and ENE: The Technology and
Defining the processes ............................................................................... 3-058 Construction COUlt ............................... ................... ....... ... ..................... 5-0 14
The momentum towards ADR ................................................................... 3-062 Financial Dispute Resolution (FDR) ............................. ........................ 5-019
Conclusion ................. ............ ... ........ ................ ....... .......... ... ...................... 3-068 The Small Claims Mediation Service .. ....... .. .... ............. ........................ 5-021
Judges as nlediators ...... .... ................ .... ....... ......... ...... ....................... ..... 5-024
4. Negotiation Issues around judges as mediators .......................... ........................... 5-028
Negotiation-the primary tool ............................................... .......... ..........4-001 Court-attached mediation by independent mediators ........ ........................ 5-032
Theories of negotiation ............... .. ........ ..... ....................... ........................ .4-003 County Court mediation schemes .......................................................... 5-034
An interest-based problem-solving approach The Exeter small claims scheme ..................... ...................................... 5-036
Getting to Yes ................... ........................... ................................... ..... ... 4--004 The COUlt of Appeal mediation scheme (CAMS) ................................. 5-039
Underlying needs .... ...... ....... .................................................................. .4-0 11 Mediation Infonnation and Assessment Meetings (MIAMs)
Creating value .... ... ................................. ..... .............. .................... ........ .4-012 Fatnily proceedings ....................... ... .. ........ ..... .. .... ....... ...................... 5-043

xvi xvii
 CONTENTS
CONTENTS
...................................... .5- 046 Examples of Dispute Boards ....... ......................................................... 7 024
Civi l proceedings ....... ...... .......... .. ..... 5--04H Expcl1 determination .................................................................. .............. 7 025
'ourts Llirccting 01' l'Ccollullcnding ADR Pl'u('CSStlS ........................... .
. . I ." A DR if; nOI ultcmpted .............. .. 5-061 Areas of application ........................................................................... ,7-027
ourts unpo:;tng ancllonl> W l~IC • . .' I '. 5 067 Procedural outline and discretion ......................................................... 7- 031
• to ADR (The Muill - I)OOI tltIl1l<1I1SC) ....... . -
ourls actmg as a gaIcway 2
, · ·1IlU nlan riglHS• .' tile Article (, argunn:llI ..................... 5-07 Finality of determination ........................................................................ 7- 036
Man dtltory ADl"unu
• ............ .. ..... .. 5- 077 Distinguishing expeli determination from single joint expCl1s ............. 7--043
COll!1-anne, C( I <-If)1 1 ·( r..." 1'J(III .............. ...... ..
. .
Non-binding cUllrt-unncxcd arbiln.llio~ .. :.. ........................................... 5-079 Distinguishing expert detcrmination from arbitration ........................... 7- 046
Adapting court-atulcxcd arbjlTatit~ll ~1II~clp lcs ..................................... 5-084 Administrative or statutOlY tribunals ... ...... ....... .. ............................. 7- 051
Court-atlac hed ADR in some other JlIl1sd lCtlOI1S ...................................... 5- 086 A range of administrative tribunals ............ ...... ... .................................. 7-056
United States ........... ................ .................. ,..................................... 5-087 Private judging .... ........................... " ....... .. ........................................ 7-059
Canada ................... ...... ............. .............. ....................... ,........................ 5-089
Australia ..... ........... ... .... ... ... ................... .............. ......................... . '" ...... 5- 090 8. Mediation-General Principles
Germany ...................... ................. ................................................ .......... 5-092 What is mediation-and who decides? ..................................................... 8-001
Denlnark ............................................................... ............................... .. .5-095 What is "real" mediation? ...................................................................... 8-009
Japan .. .... ..... .............................. ........ ...... ... ....... .... ...... .. .... ..... ............ ..... 5-096 Conciliation and mediation .................................................................... 8-0 12
China ........................................................................................ '" ........... 5-099 The principles of mediation ............ ............. .......................... .............. ...... 8-020
Singapore .............................. .... .............................................................. 5- 100 The use ofa Inediator ............................................................................ 8-021
India ........................ ... ................................. .... ..... ...................... .. .... ....... 5-102 Impartiality or neutrality ................ ......... ........ ... .................................. .. 8-027
Conclusions .............................. .. .................................................... .......... .. 5-1 04 Facilitation ...................... ..... .......................................... ... ..................... 8-033
Party self-detelmination .... ...... ........... ............................................... ..... 8-038
6. Arbitration Secure enviromnent: Confidentiality and evidential privilege .............. 8-044
Introduction .......... .......... ............................................................................ 6-00 1 Authority derived from the parties .... .... ................... ........................ ..... 8-047
The International Structure ..... .. ........................ ..................... .... ................ 6-007 Consensual decision-making ............. .. .. ................ ...... ... .................... ... .8-048
The Arbitration Act of 1996 (England, Wales and Northern Dispute or conflict resolution or management as the objective ...... ...... 8- 050
Ireland) .. ............ ............................................... ...................... ........ ...... ...... 6-0 II Accommodating the conflict dynamic: containing escalation .... .. .. ...... 8-054
The essential features of arbitration Empowerment of the parties ..................... ............. ..... .... ........ .. .. .. .. ..... .. 8-059
Agreement between the parties to arbitrate .............. .......... .................. .6-014
Appointment and impartiality of arbitrator ............................. .. .. .... ...... 6-020 9. Mediation-Practice Overview
Jurisdictional seat of the arbitration .............. .... ................ .......... ........... 6-026 Different models: the strands of practice .................. .... .. ................. .......... 9- 00 1
Procedural freedom ......... ............... .... .. .. .................... ......... ..... .. .... ........ 6-028 Rights-based or interest-based mediation ...... ........................................ 9-004
A binding award ....... ........................... .. .................................... ..... ...... .. 6-035 Pure facilitation or an evaluative component.. ........................ .. ............ 9- 009
Costs ....... ..... .......... ............................ ................................... .......... .. ..... .6-040 Settlement-geared process ........... .. .... .... .. ............ ....................... ....... ..... 9- 012
Amiable Composition and Ex Aequo et Bono Arbitration ................. ...... 6-045 Therapeutic mediation process ... ............. .. ........... .. .............................. .9- 0 14
Arbitration-related settlement .. ......... ........ ........... .............. ...... ...... ......... ... 6-048 Transformative mediation ........... ........ ...... ... ..... .......... ........ .............. ..... 9-016
Arbitration of some pariicular kinds of disputes Other models .. .................................. ................. ..................................... 9-020
International investment disputes : ICSID .. ............................................ 6-052 The stages of mediation .. .... ...... .. ... .... .... ... .................................................9-024
Consumer disputes ..... .................................................................... ........ 6-058 Pre-mediation: ......... .............................................................. .. ......... ... ... 9-029
Family law arbitration ................. ..... .................... ..... .... ......................... 6-061 During mediation: ... .... .. ....... ...... .. ....... ..... ....................... ... .............. .. .. ..9- 030
Post-mediation: ....... ..... .. ................. .. .. .. ............. ................................... ..9-031
7. Contractual Adjudication and Other Adjudicatory Processes Pre-mediation: Considering mediation, assessing suitability and
Introduction ...... ..... .. .. ... ... ... ....... .... ....... .. .. ..... ... ..... ...... .. ....... .. .... .... ... ..... .... 7-001 obtaining commitnlent ... .. .. .......... .......... .. ................................................ .. 9-032
Contractual adjudication ... ..... .... ...... ..... .... ... ...... ..... .... .. ... ...... ..... ............... 7-002 Providing information: .......... ............. ................................... ................. 9- 033
Common threads ............................................................... ..... ................ 7-003 Considerations affecting the decision to mediate ........ .. .. ........ .. .. ...... .. .. 9- 034
Statutory provision ...................................... ... ........................................ 7-004 Assessing suitability ......... ........... .... ................... ........ ................. ..... ...... 9- 037
Outline of the adjudication process .................................. .. .... ...... ......... 7- 008 Obtaining commitment- the contract to mediate .............................. .. .9- 039
Adjudication in context. ................ ........ ................................................. 7-012 When does the mediation start? .. .. ........... .. .................................. ....... ...9- 044
Dispute Boards .. ................ .... ...... ..... .... .. ....... ......... ...... .... ................ .... ... ... 7- 014
The Dispute Board coneept... .. .. .. .......... .. ..... ................. .......... .. ............. 7- 017

xviii xix
 CONTENTS

During lhc M ediatIOn: Sttlgc I : PI.:i il11i nHfY l,'ullll1 l1 lnicatlons unci Prc-Mediatiun: COllsidclillg mediatioll, asscssillg suitability alld
preparatIOn................................................. ........ ... . ... .... ..... .... 9-04X obtaining cOlllmitment ........................................................................... 10-022
Preliminaty cOlllmunications ........ ...... ,. ........................................... . .9--049 Raising public alld professional awarcncss ....................................... 10--023
Prcliminaty meeting ....................................... .. ......................... .......... 9-052 ADR pledges and contract clauscs .................................................... 10-025
"r. . ll·on ............................. ..... . ........... ............................................ 9-056 Judicial encouragement and orders .................................................... 10-031
P repu"
IHge 2: C()mme nC~l11 e lll . es tablishing the issues and setting the Preliminary meetings .................................................. ...................... 10-032
agenda.. ... ......... ............. ....... ................ ....... .... ......................... .......... 9-05 7 Assessing suitability ........................................................................... l 0--034
The issues as presented .................................................. .... .................... 9-059 Providing information ........................................................................ 10-037
Underlying issues: the "iceberg" factor ......................... ............... ......... 9-063 Trade and other associations .............................................................. 10-043
The mediator's working principles ................................. .............. ......... 9-066 Agreement to mediate ........................................................................ l 0-044
Stage 3: Information gathering ................ .... ..................... ... ........... ........... 9-068 Stage I: Preliminary communications and preparation
Displaying information: the tlip-chart .......... .........................................9-069 Preliminary conununications or meeting ....................................... .. 10-049
How much information is enough? ....................................................... 9-070 Establishing the venue .................................................................. ..... 10-062
Stage 4: Conducting substantive negotiations ... ............................. ........... 9-072 Facilities at the venue ........................................................................ 10--067
Managing the process .................................................. ................ .......... 9-073 Legal representation ............ ..... ... .. .............. ... .... ...... ........ ... ..... ....... ... 10-069
Facilitation ....... .. ... .... .......... .... ..... .......... ...... ... .............. .............. ........... 9-075 Authority of corporate representatives .............................................. 10-071
Holding joint or separate meetings (caucuses) ... ........................ .. ... .... .. 9-077 Stage 2: Commencement, establishing the issues and setting the
Generating and developing options .. ..................................................... 9-078 agenda ...... ..... ......... ....... ...... ... .... ..... .................................. .................... 10-073
Brainstonning ..................................... .... .......... ....................... ....... ....... .9-080 Opening the mediation session ....... ....... .. ....... .............. ... ... ........ ...... .1 0-075
Building hust and understanding ................... .. ...... .. ............... ............... 9-083 Establishing the issues: oral presentations ............................ ............. 10-077
Using communication and other skills .. ................ .................... ............ 9-085 Setting the agenda ....... ............ .... ......... ..... ... .. ................. .. ............. ... . 10-080
Testing perceptions, positions and proposals ............................ ......... ...9-087 Stage 3: Information gathering .................................. ...... ......... ....... "" .. 10-083
Sensitivity to the expression of emotions .............................................. 9-091 The written case smmnaries ............... ..... ..... .. .............. .............. ........ lO-086
Evaluation ..... ...... .. ................. ...... ............ ................................... ............ 9-094 The bundles of docunlents .. .............................. " ......... .. ................ .... 10-091
Stage 5: Dealing with impasse .......................... .... ..................................... 9-095 Establishing underlying views and concerns ........... .. ......... ." ..... .... ... 10-095
The mediator's role and assumptions ...................................... .............. 9-098 Other infonnation required ............... ..... .................. .... .................. ....10-098
Blocks caused by tenninology or symbolism ........................... ............. 9-099 Acquiring specialist information ...... ... ..................... ..................... ... ..10-099
Differences of perception: fairness, values and other aspects .............. 9-1 03 Stage 4: Conducting substantive negotiations ...................... ....... ......... .1 0-100
Emotional blocks ....... ................... ..................................................... ..... 9-105 The first separate meetings ......................... ........... ... .................... .... .1 0-104
Conflicting legal or technical advice ..................................................... 9-108 Initiating discussions and negotiations ........ ............. " ....................... 10-1 07
Helping parties to assess risk ................................................................. 9-11 0 Option development and reality testing ..... ,............... .. ...................... 10-11 0
Other strategies ... .. ........ ............... ........................................................... 9-113 Shuttle mediation ... ............................. ................................................ 10-115
Stage 6: Concluding mediation and recording the outcome ..................... 9-116 Working with parties' lawyers and other professionals ..................... 10-118
Addressing post-mediation issues ................................ .............................. 9-119 Arranging a series of meetings ..................................... ........ .. .......... .1 0-123
Multi-party disputes ............... .................................................................... 9-120 Dealing with emotions: the myth of rationality in civil and
Some practical points for mUlti-party mediation ........... ................. ...... .9-123 commercial disputes ........... .. .. ........ ......... .......... .... .. ................. .... ... ... 10-127
Outline of different fields of mediation activity ...... ............... ...................9-127 Other pennutations of meetings and ways of working ..................... 10-135
Using facilitation and conununication skills ..................................... 10-136
10. Civil and Commercial Mediation Adopting an evaluative mode .......................... ................................ ,, 10-139
What is covered in the field of civil and commercial mediation? ........ 10-00 1 Stage 5: Dealing with impasse .......................... ............. .. ................. " .. .lO-I42
Development of civil-commercial mediation in the UK Addressing risk perception .. ...................... ......... ............................... 10-143
Private sector civil-commercial mediation bodies ........................... .. 10-005 BATNA and WATNA ..... .. ............. ..................................................... I0-152
Low cost and publicly funded mediation ................................... ....... 10-009 Examining underlying issues .......... ........ .. ........................... ... ....... " .. 10-154
Specialist civil and commercial mediators .... ..... ................ ........ ....... 10-011 Exploring creative options ................................................................ . 10-156
The Civil Mediation Council ............ ......... ................... ..................... 10-0 14 Symbolism ......................................................................................... . 10-158
Lawyers and rights in civil and commercial mediation ........................ 10-0 15 Brackets ............................ .. ..................... ........................................... 10-160
The stages of civil and commercial mediation ...................................... 10-020 Adjournment for non-binding third-party evaluation of an
issue ........... ... ....... ... .......... ....... ......... ................ ............ ...................... 10-162

xx XXi
 ('ONTL~NTS
CONTENTS
. .. 10 164 Childrl:ll's issllcs ami parenting plans ..................................... ......... II - 12()
Making non-binding sctt Icll1cnt proposa Is .............................. .
Othcr stratcgies ..... ............. ........... ............................................ 10 - 169 Separate meetings (caucuses): using the "hybrid" modd ................ II -In
. I . .. ............... .. 10 - 173 Stage 5: Dealing with impasse ................................. . .................... ! ] - 131
Preparing for ar~u( I lcutlOIl ........................................... .
• 1 • r. .• " ................. .. 10- 175 Pausing and ret1ecting ........................................................................ 11 - 132
Adjournment (111\,1 • aller-Cllle.: .............. :............ ..
. 1' cl'allon lind rccordlllg the ()u lcome ............... 10-176 Allow the parties to absorb the progress ........................................... ! 1-133
Stnge 6: C one 1u\,Ilng 1110 I 0 g4
Address ing P()st mediation iSSllCS ...... .. .................................... 1 -I Addressing underlying fcars and concerns ....... ................................. 11 134
Deal n1cdiation ........... ........................................................................... 10-1 gg Addressing unresolved emotional blocks ............ ............................... I 1- 136
Dealing with cyclical patterns of behaviour ........ ,....................... .... 11 - 139
11. Divorce and Other Family Mediation Considering perceptions of faimcss ............. .............................. ,..... .. 11 - 140
Introduction ... ...................................................................................... 11- 00 I Recognising the power of words and symbolism ............ ............... ... 11-142
Ovcrview of family mediation in the UK Short term experiments and reviews ............................................... ... 11-145
Brief histOlY ........................................................................................ 11 - 004 Managing differences of legal perception .............. ............................ 11- 146
Mediation and conciliation through the courts .................................. 11- 0 12 Using draft sunlli1aries ....................................................................... .11-147
Financial Dispute Resolution (FDR) .................................................. II - 015 Risk assessment (BATNA/WATNA) .................................................. 11-149
The Family Mediation Council (FMC) .............................................. 11-017 Separate meetings (caucuses) ............................................................. 11-153
Family Mediation Standards Board (FMSB) ................... .................. 11 - 019 Family arbitration ........................................................................... ... 11-154
Mediation Infonnation and Assessment Meetings (MIAMs) ............ 11-020 Preparing for adjudication .......................... .. ............ ........................ .. 11-155
Counselling/psychotherapy ................................................ .............. ....... 11 - 022 Stage 6: Concluding mediation and recording the outcome
Sole or anchor mediation and co-mediation .......................................... 11-028 Concluding the mediation ............................ ...................................... 11-156
Lawyers and rights in family mediation ................................................ 11-031 Preparing summaries and memoranda ..................... .......................... 11-160
Lawyers as mediators ....... ..................... ............. .............................. .. 11-038 Concluding formalities ....................................................................... 11-166
Including children and young people in mediation and dispute Addressing post-mediation issues .......................................................... 11-169
resolution processes ..... ............. ..... ............ .... ........... .... ........... ..... .......... 11-040
Issues around mediating with domestic violence or abuse 12. Neighbourhood and Community Mediation and Restorative
Abuse between the couple ...................... .... ............... ....... ............. .... .l1-050 Justice
Child abuse ......................................................................................... 11-058 Introduction to Neighbourhood and Community Mediation ................ .l2-001
Professional consultancy or supervision ........................... ..................... 11-061 Neighbour disputes ................................................................................. 12-007
Mediating unmarried cohabiting couples ................... ...... .............. ... ..... 11-065 Noise problems ............................... ............................... ,................. ... 12-008
Family issues other than separation and divorce ......................... ......... .11-067 Verbal abuse or harassment. ...................... .......................... .... ........... l2-009
The stages of family mediation .............................................................. 1 1-069 Children's behaviour ...... .................................................................... 12--010
Pre-Mediation: Considering mediation, assessing suitability and Pets and other animals ...................................................................... .12-011
obtaining commitment .................................... ....................................... . 11-070 Boundary issues ......... ....... ... .. ............................... ... ...... ......... ........... 12-012
Intake sessions and MIAMs ............ ................................................... 11-074 Eyesores and other environmental issues ........................................ .. 12-013
Preliminary mecting with lawycrs ..... ................. .................. ... .......... 11-077 Parking and other neighbour issues ................................................... 12-0 14
The Agreement to Mediate .............................................................. ... 11-079 Mediation of social conflicts and inter-group disputes ..................... 12-0 15
During the Mediation: Stage 1: Preliminary communications and Mediation in schools and peer mediation .............................................. 12-0 16
preparation ...................................................................................... ........ 11-081 Elder mediation ...................................................................................... 12-023
Stage 2: Commencing the mediation, establishing the issues and Gang mediation ............................................... ..................... .. ,.... ........... 12-024
setting the agenda ...................... ............................................................. 11-08 7 UK gang mediation developments ............ .. .................. ..................... 12-027
Stage 3: Infonnation gathering ............................................................... 11-097 Other community mediation ...... ............................................................ 12-032
Stage 4: Conducting substantive negotiations ....................................... 11-105 Community mediation services .............................................................. 12-033
Option development ........................................................................... 11-1 06 The mediation process in community disputes ..................................... 12-037
Providing infonnation ......................................................................... 11-11 0 Pre-Mediation: Considering mediation, assessing suitability and
Using communication skills .... ....................... .................................... 11-113 obtaining commitment ........................................................................... 12-040
Dealing with the expression of emotions ........................................... 11-114 During the mediation: Stage 1: Preliminary communications and
Managing the process ......................................................................... 11-118 preparation .................... ,....................................... .... ... ........ ..... .... .......... 12-045
Helping with reality testing ................................................................ 11-120 Stage 2: Commencement establishing the issues and setting the
Facilitating negotiations and decision-making ................................... 11-122 agenda ......................... .... ............. ........ ................................................... 12-049

xxii xxiii
 CONTENTS CONThNTS

Stage 3: Information gathering ......... ... ................................ 12- 05() 14. Mediator Attributes, Skills and Roles
nducting substantive negotiatIOns ................................... 12---05X Introduction .. .............. ... ..................... ....................................... 14- 001
Stage 4 : Co . .'
Stage 5: Dealing :Vlth Impa~se.. . ....... . .......... ...... .... .. .......... 12-0()3 Thc concept of the constlllct.. ..... ......................................................... .14-·007
Stage 6: Concludlllg ~l~dIatlOn and recordmg the outcome .. , ......... 12-066 Foundational knowledge
Addressing post-medIatIOn Issues ....................................................... 12-069 Theoretical understanding ... ........................................................... 14-008
General observations ........................... .................................................. 12-070 Practical skills ....................... ...................................................... 14--- 009
Introductory overview of restorative justice ................... ...................... 12-074 Ethical awareness .......................................................................... 14--011
Restorative justice .............................................................. ................. 12-0XO Desirable attributes ... ... ...... ....... .......................................................... 14-019
Restorative justice: the rationalc ........................................................ 12-083 Sound judgnlent ............................................................................. 14- 020
Victim-offender programmes ............................................................ 12-088 Sensitivity and empathy ................................................................. 14-023
Restorative cautioning ................. ...................................................... 12-091 Leadership traits or style ........................................... ........................ 14- 031
Restorative justice for young offenders .................... ......................... 12-093 Creativity ............................ . ......................................................... 14-033
Kinds of offences dealt with by restorative justice Flexibility ....................................... ................................................ 14-036
progral11ll1es ......................................................................... ............... 12-095 Balance ................................. .... ...................................................... 14- 039
Restorative practices .............................................................................. 12-1 02 Mediation skills ........ .... .... .. .............................. .................................... .. 14-042
Family Group Conferencing and youth restorative justice ............... 12-1 03 Listening .. ......................................... ... ......... ... ................. ... ............... 14-043
Circles .... ............ .............. .. .... .. ...... ..................... .... .... ... .... ........ ........ . 12-108 Observing non-verbal communications ............................................. 14-046
Restorative practice in schools ........................................................ .. 12-1 09 Hel ping palties to hear ............ ..... ................................... .. ................ 14-049
Questioning ........... .............. .... ........................ .. ................................. 14-052
13. Workplace and Employment Dispute Resolution Sulnnlarising ............. .................................................. .............. ... 14-055
I3ri f UK his torica l ba ·kglound ............................................................. 1 - 001 Acknowledging .... ......................... ........ ......... .................................... 14- 057
Acus ........................................................................................................ 1 -005 Mutualising ..................................................................... ..... .. ............. 14-061
Processc' and termi nol gy ..................................................................... 13- 007 Using language effectively and reframing .................... ..................... 14-064
on iliation .............................. .... .............................. ........................ 13- 008 Use of Inetaphor ....... ...................... .................................................... 14-069
Mediation ............ ........ ............................... .... ................... ... ............ ... 13-01 2 Nonnalising ...................................................... ... .................. .. ........... 14-073
Arbilration .. ... .............................................................. ....................... 13- 0J4 Managing conflict and the expression of emotions .................... ....... 14-075
"mployment and workplace issues distingui. hed ............................. 13- 015 Lateral thinking .. ..... ..... ............... ............. ..... ................ ..................... 14-083
Rationale for ADR in employment ano workplace di pute ................. 13 17 Understanding triangulation and avoiding alliances ........................ .14-085
Conciliation praclice and procedure ............................ .......................... 13- 022 Encouraging a problem-solving mode ... ...... ...................................... 14-092
Individual conciliation .......... .. ..................................................... ...... 13- 023 Being silent. ............. ... .................... ....... .. .......... ...... .... ... .............. ...... 14-095
Co llective conci lialion ........... ........................ ................................ .. .. J 3- 028 Constructive facilitation .................................. ................................... 14-098
Settlement ( mpromise f:lhlTeemcnts ............................................... 13- 032 The mediator's roles and functions ....................................................... 14-102
Mediation proclice ................ .... .. .................. .......................................... 13- 034 The mediator as manager of the process ........................... ................ 14-1 03
tage 1: Preliminary o1DJllunicat-ions and preparation ......................... 13- 038 The mediator as information gatherer .............. ................................. 14-105
tage 2: C Illmenccment, estab lishing the is ues and etting the The mediator as facilitator ...... .. ....... ................................. ................. 14-106
agenda ...... .. ............... ................. .......... ................................................... 1 - 042 The mediator as reality tester and evaluator .... ................................. 14-1 07
' rage 3: lnfonllati II gathering ....................... ................ .......... ............. 13- 044 The nlediator as host ................................................ ......................... . I 11 2
tage 4: ollducting substantive negotiations .............. ......................... 13-047 The mediator as scribe ........................... .... ............ ........ .................... 14-117
Stage 5: Dculing with impasse ................................. .............................. 13- 052 The mediator as settlement supervisor ...... ........................................ 14-118
Stage 6: Concluding m dintion und recording lh outoome ....... .......... 13-058 Mediator Training .................................... ............ .. ................................. 14-119
P st-Mediation ........ ......... ....................... ..................................... .......... 13-060
olle tive mediation .................................................................... .......... 1 -062 15. Confidentiality and Privilege
Employment arbib'aliol1 ........ ................................................ .. ............... 13- 064 Introduction ........ .. ..... ...... .... ........ ............ ... ............... .... ... ... ........ ........... 15-00 1
Confidentiali ty
General principles .............................. ............... ................................. 15-012
Confidentiality in ADR ...................................................................... 15-022
Confidentiality of matters dealt with in the process ..................... 15-023
Confidentiality of separate meetings or caucuses ...... ................ ... 15-032

xxiv xxv
 CONTENTS ( ·ONI1·HIS

Some general principles where conlldentiality is not Legal representation guiding I~lirness ............................................ 16 -049
applicable ............................................................... ,................. .... 15-036 Other fairness considerations ......................................................... 16-050
Privilege........................................................................................... ... 15--037 Manifest unfairness .............................. .. ........................................ 1(i-051
Professional privilege........ ...... ......... ...................................... ....... .. 15--048 Conflicts of interest ................................................................................ 1(i-052
Without prejudice ....................... ...... ................................................ 15-053 Regulating conflicts of interest ancl perceived conflicts ................... 16-054
Reconciliation......................... .............. ..... ....... ...... ..... .. ... ... ....... .. . 15-068 The wider net covering conflicts and perceived connicts ................. 16-0S7
Mediation about chi Idren .............................................................. .... 15 ·-072 Absolute and relative bars to mediating by reason of conflicts
Part 36 of the Civil Procedure Rules: Without prejudice save as and perceived conflicts ...................................................................... 16-060
to costs.... .... ..... ........... .. . ....... .. ...... ............. .......... .......... ..... ... ...... 15-07 5 Abso lute bar to mediating .............................................................. 16-062
Employment conciliation provision, family court practice ........ ..... 15-076 Qualified bar to mediating ..................... .................. . .............. 16-065
Court excluding confidentiality and privilege ................................ ....... 15-079 Conflicts or perceived conflicts arising or identified after
The court stipulates for mediation and wishes to know what mediation has started .......................................................................... 16-067
happened ....................................... .................. ................. ................... 15--080 Changing roles after the conclusion of mediation ............................. 16-069
Allegations are made of fraud, misrepresentation, economic Ethics of Confidentiality ............... ........................................................ 16-071
duress or undue influence ............................... .................................. 15-088 Ethics of confidentiality in ADR generally .................................... ... 16-072
The court wishes to determine whether an agreement was Ethics of confidentiality in private meetings ................................. .. .. 16-079
concluded .............. .. ............................... ..... ............... ......................... 15-094 Disclosure of information from separate meeting into joint
Where there is an allegation of negligence ...................... ................. 15-097 Ineeting ............................................... ........................................... 16-081
Where the court wishes to interpret an agreement.. ......................... .15-103 Agreement to maintain confidentiality of separate meetings ........ 16-085
Proceeds of Crime Act 2002 ......................... ......................................... 15-106 Separate meetings with special IUles ..................... ... .............. ....... 16-090
Contracting for confidentiality and privilege ........ ................................ 15-114 Power imbalances
Privilege and confidentiality under the EU Directive .. .................. ..... .. 15-118 Forms of power ......... .... .......................... ........... ... ....... ................... ... 16-093
A mediation privilege? ........ ............. .... ... .. .............. ................. .. ............ 15-123 Power imbalances: the mediator's role .................. ............................ 16-099
The mediator's position .. .................................... ..... .......................... 15-138 Should a mediator try to redress a power imbalance? .................. 16-10 1
Clarification and reform .. ... ...... ........................... ... ............................ 15-142 What steps could a mediator take to redress power
inlbalances? .......................... ........... ..................................... ... ....... 16-1 09
16. Ethics, Values, Fairness and Power Mediator cautions ................................................................................... 16-117
Introduction ................ ......... .. ........ .... .. ................................................... 16-001 When mediation is inappropriate ....................................................... 16-118
Rules of underlying professional bodies .............................................. .16-010 When mediation needs to proceed with caution or reservation ........ 16-119
The Law Society of England and Wales and the Solicitors Conclusion ...................................... ...................... .................................. 16-121
Regulation Authority
General provisions ......................................................................... 16-0 12 17. Lawyers' Role Representing Parties in Mediation
Specific mediation provisions ........................................................ 16-0 17 Introduction ........... .............. .. .... .. .................. ... .. ......... ........ ................... 17-00 1
The Law Society's Mediation Panels ................... ............ .... ......... 16-0 19 Differences between civil-commercial and family mediation ............... 17-004
The Bar ... ................................... .................................... ..... ................ 16-020 Specialist mediation advocacy ............................................................... 17-007
ADR Ethics and Codes of Practice ........................................................ 16-021 Deciding on the mediation forum ........... ............................................... 17-009
The practitioner's values, attitudes and beliefs Is the dispute suitable for mediation? ..... .. .. ... .......... .... .......... ............ 17-0 10
The concept of neutrality ............ ..................................... .............. .... 16-026 What kind of mediation is required? ................................................. 17-0 18
Personal values, attitudes and beliefs ......................... .................... .. .16-028 Does the mediator need to be an expert? .......................................... 17-020
Attitude to conflict ......................................................................... 16-030 Commercial and civil disputes ..................... ................. ... .. ..... .. ..... 17-022
Rationality-emotionality ...... .. ...... ............... .............................. ..... . 16-032 Family issues ................ ........................................ ........ .... .............. 17-025
Values, beliefs and assumptions ..................................................... 16-036 Engaging the other party in mediation ......... .............................. ........... 17-030
Fairness Understanding the mediation process ..... .............................................. .17-032
Fairness of process or fairness of outcome ............. .. ........................ 16-039 The Pre-Mediation Phase ................ ....................................................... 17-034
What constitutes fairness? Preliminary meetings ....................... ...... ...... .... ... ..................... .. ..... ... 17-035
The parties' views guiding fairness .................. .... ............... .... ..... .16-044 Selecting a mediator ..... ........ .. ... .............................. ..................... ... ... 17-037
Legal principles guiding fairness ........................................... .. ...... 16-046 The agreement to mediate ................................... .............. .............. ... 17-040
Workability guiding fairness .............................. .. .... ........ .............. 16-04 8

xxvi xxvii
 CONTI:NTS CONI I ~NTS

rhe SUDstantiw Mediation Phase Killd~ ,)/' cases suitable 1'01' lIIilli -trial ................ .. ............. ......... 19· O,'iO
Preliminary mectings <lnd cOlllmunicatiollS ... ..... ............................. , 17 ·041 Tillling or mini-trial usage .................... .... ........ .............. .............. 19 053
Dealing with the ciOClIl11Cntalilln General observations about mini-trials .. .................... ....... ............. 19 055
Civil-collllllercial disputcs .......... ................................................... 17043 The sUlllmary jury trial ............................................................ .............. 19 05'>
FaJllily issues .............................. .................................................... 17 -04R Early Neutral Evaluation, Case Evaluation, hnancial Dispute
Preparation Rcsolution and the Court Settlement Process
Civil-colllluercial cases .............. .................................................... 17- 050 Outline of ncutral evaluation .............................. .. ........ .. ........ ........ ... 19- ()62
Fmnily cases ..................................................................... .............. I 7·-()53 ENE throllgh the courts ............................ .. .. ,............ " .. .. .... ........ ... .. 19·-066
Thc substantive mceting ................ ............... ............... ... ................... 17-055 Neutral evaluation procedure ....................... ... .. ........ ............. ......... ... 19-·071
Prescntation of thc casc in civil commercial mediation ................ 17- 057 General observations about evaluation ........ .. ... ............. .. .... .......... .. 19- 072
Prcscntations in family mcdiation .................................................. 17-061 Financial dispute resolution ........... .......................................... .......... 19- 076
Providing information ................. ............ .......... ................................. 17-063 Court Settlement Process ." " .... ...... ...................... " ........ ....... " ........... 19- 079
Negotiating and communicating during the mediation ..................... 17- 064 Hybrid processes .................. ........... ... ....... ............................ ........... ,..... 19- 0RO
Stratcgies ................... ............ .. ................ ................... .... .................... 17-069 Med-arb (mediation-arbitration)
Thc lawyer's role during substantive family I1lcdiation .................... 17-071 Outline and issues for consideration ...... ...... .. ..... .................. .. ...... .... .l9- 0R2
Drafting and fonnalising ..... .... ....................................................... .... 17-075 Meeting the concerns ............. ..... ................. ...... ............... ................. 19-088
Vctting family mediation proposals .................................................. .17-080 Arb-med (arbitration-mcdiation) ............... ....................... ..... ........... ,..... 19- 094
The Post-Mediation Phase ..................................................................... 17-085 Some further observations about med-arb and arb-med ...... ...... ........... 19- 101
Neutral fact-finding expert.. ...................... ........... ........ ........................ .. 19- 103
18. Ombudsman
The ombudsman concept .......................................... ............................. 18-001 20. Online Dispute Resolution
The ombudsman's role and function ................................................. 18-004 Introduction ...................................................................... ...................... 20- 00 1
The range of ombudsman institutions ............................................... 18-007 Disputes arising online ........................................................................... 20-005
How the ombudsman operates "Real world" disputes dealt with by ODR ............................................ 20- 012
Ombudsman procedures ..................................................................... 18-0 12 Double-blind bidding ........................................... ............................. .20-015
Relnedies .. .. .................... ........ ,........................................................... 18-021 Visual blind bidding ... ... ................................................. ........ ,.......... .20-0 16
Online and communication ombudsmen and adjudicators .................... 18-023 Online arbitration ............................................................................... 20-017
EU Directive on Consumer ADR: Implications for ombudsmen ........ .18-030 Supporting traditional ADR ........... ...................................... .............. 20-019
Ombudsman developments, challenges and criticisms ........................ .18-035 Other usages of ICT in dispute resolution ............................................. 20- 022
Complaints adjudication .............. .............................................. ............. 18-041 Regulation or harmonisation of ODR .................................................... 20-024
Some practical ODR issues
19. Non-Binding Evaluative ADR and Hybrid Processes Confidentiality .................................................................................... 20-032
Introduction to non-binding evaluation ................................................. 19-001 Enforcement ., .. ... ....... ..................................................................... .... 20--()34
Reasons for evaluating ........................... ................................................ 19-005 Law and jurisdiction ... ................................................................. ...... 20-038
What constitutes neutral evaluation? ..................................................... 19-011 ODR and the coulis
Some considerations relevant to neutral non-binding evaluation ........ .19-018 Money Claims Online ..... .. ....... ............................. ............... .......... .... 20-040
Evaluation in mediation .. .............. ......................................................... 19-019
No idea of the parameters .................................................................. 19-022 21. Jurisdiction, Forum and Law
Deadlocked by differing outcome perceptions .................................. 19-025 ADR jurisdiction .................................................................................... 21-001
Opposition to evaluation in mediation ............................................... 19-029 Authority arising from statute ........................... ..................................... 21-002
The mini-trial (Executive Tribunal) Authority arising from agreement. .................. ,...................................... 21-005
The mini-trial eoncept. ....................................................................... 19-032 Contract clause stipulating for ADR ...................................................... 21-007
The mini-trial procedure Arbitration clause ...................................... ............... ,......................... 21-0 12
Appointment of neutral adviser ..................................................... 19-03 7 Clause for non-adjudicatory ADR ..................................................... 21-014
Preparation ...................................................................................... 19-040 ADR agreement after dispute has arisen ............................................... 21-020
The conduct of the mini-trial.. ................. ..................................... .l9-042 Enforceability of ADR clauses in contracts .......................................... 21-025
The neutral adviser's role .............................................................. 19-043 ADR FOluln .............. ............................... .. ................................. ............ 21-039
The settlement negotiations ........................................................... 19-047 Applicable Law ...................................................................................... 21-043

xxviii xxix
 CONTENTS

22. Future Directions ................................ ..... 22-001

ADR 25 years on ............................................. .. TABLE OF CASES
:;;=~i ~
Brcxit .. :................... ...... ................... :::::::.: :::::::::::::::::::::::::::::::::::::::::::::
RegulatIOn.. ............. .............. .......... 22 016 All v British Coal Corp [2004] EWIIC 1372 (Q13) . . . . . .. 2 004
Education and academic developments .... .......................... ............ ...... - ?
Aegis Blaze, The [1986] I Lloyd's Rcp. 203 CA (Civ Div) . .. 15-·050
Review of civil justice and ADR ........... ....................................... ....... 22- 02_ AiI'd v Prime Meridian Lid [2006] EWCA Civ 1866; [20(7) c.r. Rep. 18; [21107J H L RIO); III
Compulsion: where are we? ................... .............................. · ................. 22- 025 Con. L.R. 20l); (2007) 104(2) L S G. 31; (2007) 151 S.ll. 11. 60 . . 15- 065
Black Swans and the GDPR .................................................................. 22- 027 AI-Khatib v Masry [20(4) EWCA Civ 1353; [20(5) I F.L.R. 381; [20(4) 3 F.C R. 573 . 5- 057
The Way Forward ...................... · .... ·· .... ·.. ·· ....................................... ...... 22- 032 Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioncis (No 2) [1972) 2
Q.B. 102; [1972)2 W.L.R. 835; [1972)2 All E.R. 353; (1972) 116 S..I. 198 CA (Civ
Div) . , . .... . . . . . . . . . . . . . . . , .... . . . . . . . . . . . . . . . . . . . . , ... 15 .. 049
Appendices Ali Shipping Corp v Shipyard Trogir [1999) I WL.R. 314; [1998) 2 All E.R 136; [1998) I Lloyd's
1. Drafting, Documents and Precedents .................................................... A 1-00 1 Rep. 643; [1998] C.L.C. 566 CA (Civ Div) . . . .. .... .. 15-·027, 15- 029
II. COUl1-Related Documents and Directives ...... ....................................... A2-001 Alleo Steel (Queensland) Pty Ltd v Torres Strait Gold Pty Ltd Unrepol ted March 12, 1990
Queensland Sup CT. , . . ...... , . . . . .. . . . . . . . . . . . . . . . . . . . . . 15 - 029
Anufrijeva v Southwark LBC; R. (on the application of M) v Secretary of State for the Home
PAGE Department; R, (on the application of N) v Secretary of State for the Home Department; sub
Glossary .......... ............ ... ... ...................................................... ........................ .... 487 nom R, (on the application of Anu!j'ijeva) v Southwark LBC [2003) EWCA Civ 1406; [2004)
Q.B. 1124; [2(04)2 W.L,R. 603; [2004] I All E,R. 833; [2004] I F.L.R. 8; [2003) 3 F,C.R. 673;
Bibliography ........ .... ............... ................ ........ ........................ .............. .......... .... 497 [2004) H.R.L.R. 1; [2004) U.K.H.R.R. I; 15 B.H.R.C. 526; [2004) HL.R. 22; [2004] B,L.G.R.
184; (2003) 6 CCL. Rep. 415; [2004) Fam. Law 12; (2003) 100(44) L.S G, 30. , ... , .2- 006
Index ................................................................................................................... 519 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948) I K.B. 223; [1947] 2 All E,R.
680; (1947) 63 T.L,R, 623; (1948) 112 J,P, 55; 45 L,G,R. 635; [1948] L.J.R. 190; (1947) 177
L.T. 641; (1948) 92 S.J. 26 . . ...... . . , . . . . . . . . _ . . . . . . . , . . . . . . . . . . . . 18- 037
Attorney General v Observer Ltd [1990) I A.C. 109; [1988) 3 W.L.R. 776; [1988] 3 All E.R. 545;
[1989)2 F.S.R. 181; (1988) 85(42) L.S,G. 45; (1988) 138 N.L.J. Rep. 296; (1988) 132 S.J. 1496
HL . . . . . . . , ..... , .. , ...... , , , . . . . . . . . . . . . , . . . . . . . . . . 15-014
Avonwick Holdings Ltd v Webinvest Ltd [2014] EWCA Civ 1436 . . . . . . . . . . . . . . . 15- 062
Balfour Beatty Construction Northern Ltd v Modus Corovest (Blackpool) Ltd [2008] EWHC 3029
(TCC) . . . . . . . , ...... , , , . , . , .... , . , , . . . . . . . . _ .... , ..... 2 1- 035, 21-036
Barker v Johnson [1999) EWCA Civ 1088 CA ",." ... ,. , . . . . . . . , . . . . . . . ,.,5- 055
Beaufort Developments (NI) Ltd v Gilbert-Ash (NI) Ltd [1999) I A.C. 266; [1998)2 WL.R. 860;
[1998]2 All E.R, 778; [1998) N,!. 144; [1998] C,L.C 830; 88 B.L.R. I; 59 Con. L.R. 66;
(1998) 14 Const. U. 280; [1998) E,G. 85 (C,S.); (1998) 95(24) L.S.G. 33; (1998) 95(31)
L.S.G. 34; (1998) 148 N.L.J. 869; (1998) 142 S.J.L.B, 172; [1998) N.P.C 93; [1998] N,P.C, 91
HL (N!) , ..... , .. , .. " ... , . , " " " " , ... , .... ,.... . .. , ..... 21-032
Bernhard Schulte GmbH & Co KG v Nile Holdings Ltd [2004] EWHC 977 (Comm); [2004)2
L1oyd's Rep. 35 , .... , , ..... , .. , .. , , . , , , ... , . . . . . . . . . . . . . . . . . . . . 7-040
Bilta (UK) Ltd (In Liquidation) v Nazir [2010) EWHC 1086 (Ch); [2010] Bus. L.R. 1634; [2010)2
L1oyd's Rep. 29 ... , .... , .. " . , . " , ... , . . . . . . . . . . . . . , . . . . . . . . . . 21 - 029
Birse Construction Ltd v St David Ltd (No.1) [2000] B.L.R. 57; 70 Con. L.R, 10 CA (Civ
Div) . . . . . . .. . ..... , ... ,', .... , .. " . . . . . . . . . ... .. ... 21-027
Blunt v Park Lane Hotel Ltd [1942) 2 K.B. 253 CA ,., . . . . . . . . . . . . . , ...... , .. 15- 046
Bolkiah v KPMG [1999) 2 A.C 222; [1999) 2 w'L.R. 215; [1999] I All E,R. 5 17; [1999) I
B,CL.C I; [1999) C.L,C. 175; [1999) P.N,L.R. 220; (1999) 149 N.L.J. 16; (1999) 143 SJ.L.B.
35 HL " . . . . . . . ,." .. ,." .. , .. , " , . . . . . . . . . . , . . . . . . . . . . . ... 16-057
Bowman v Fels [2005] EWCA Civ 226; (2005) I w'L.R. 3083; [2005) 4 All E.R. 609; [2005] 2 Cr.
App, R. 19; [2005)2 CM.L,R. 23; [2005)2 F.L.R, 247; [2005) WT.L.R, 481; [2005) Fam. Law
546; (2005) 102(18) L.S,G, 24; (2005) 155 N,U. 413; (2005) 149 S.J.L.B, 357; [2005) N.P.C.
36 . , .. , , .... '" ...... , ... ,. , .. , . , .... , .... , . . . . . . . . . . . . . . . 15-110
Brown v GIO Insurance Ltd [1998] CL.C 650; [1998] Lloyd's Rep. !.R . 201; (1998) 95(9) L.S.G.
29 CA (Civ Div) ...... , " , . , ' , . , .. " . . . . . . . . . . . . , . . . . . . . . , ..... 7- 042
Brown v Rice [2007) EWHC 625 (Ch); [2007) B.P.I.R, 305; [2008] F.S.R. 3; (2008) 24 Const. L.J.
238; [2007] CI.L.L. 2467 . . . . . . . . . . . . . . . . . . . . . . . . . 9-027, 9-044, 15-065, 15-094
Burchell v Bullard [20(5) EWCA Civ 358; [2005) CP. Rep. 36; [2005] B.L.R. 330; [2005) 3 Costs
L.R. 507; (2005) J55 N.L.J. 593 ." .. , ... , . . . . . . . . . . . . . . . . . . . " . . . . . . 5-058
Burchell v March, 58 U.S, 344, 349 (1855) .. , , , , . , . . . . . . . . . . , .... , . , , , . , ... 6-029
C (A Minor) (Care Proceedings: Disclosure), Re [1996) 2 F.L.R. 123; [1996) Fam, Law 603 Fam
Div . , . , .... , . . . . . . . . . . , , . , , ..... , , , , ... , .... , . . . . . . . , , .... 15-074

xxx xxxi
 '1';\131,1 ·, OF (';\SI ~ S JABU'; OJ C'/\SJ'S

( Inl - & Win:l~ ~ Pk v IUM 1Jnllcd t.. 1I1l!{11l111 I Itl; ~uh

""111(·.Ihk " \Ii IIdL'~' 1'1,' \ Ill.! Lit.. I. 1\1 (i ,1I (side v 011 I iii III (I };S7) i.(, I, I Cit I I I IS 0.1(,
. [iOO'1 1 \VII U~'I ((11111111) f~OI"12 1\111' I~ (C t1IlInllltl41.12n{J~] ( '1 (. 111<), (211113] (illlill v Uowns [1<)7(,111 C /\. (d; (l'Il(,) 115 (' I , I{ 1>74 15 04:-:
11 L.R. IN; [2002j'Masolls t. L.U ~i (2{)02) 152 N 1...1 ,Ih~ I " -I ()l\~I, 21 OH (iranl v Suulh Wcsleln and Counly Propcllil!s lAd II 'n)1 CI1 I X5; II '!741 .1 IN IJ.I( n r; [1'i741 2
( aluL'l llIIlIk \' CulLlel blink [1 '171>1 hlill CJ l 11 "7<; I 1 W.I.l1 :-l\{J II 17~ J ,,\ II I' R 1H; (I 17'» ~ ~' /\11 I', R. 4(,5; (I <)74) II Ii S.I 54H Cll I) . .. 15 0(0',)
I-' I 190' (IQ7S) JI9 S.J 4c)Utl\(tiv[)I\'1 . . ...... - ... 150.[0; (ill'at Atlantic [nsul'ance Co v Ilollle Insulllnl'c Co [1'iX II I WI, R 52'!; II ']x 112 All I' .R. 4~5;
nlll1~'I:1I ~~'~f!irrtll~ (irtllip NCII'~J IlpCrs r Id 12()O..J ll ""l .>2; 120(141 2 A. . 457, 12UI)-I)2 W.LR . [191'1]2 Lluyd's Rei). 138; (I'JSI) 125 S..I 203 CA (eiv Div) . . . . . . 15 OSI
1232; (2f!(14 J ,\11 1 R 1)<)'1 120Cl..J]l: .l\fl L.IL 15; [ZOIl4JII .IU It 24, 120041 11 ..K.II.R.R I}'\II; Guinncss Peal Properties Ltd v l;iV.my Robinsun Parlncrship [19K7] I W L.R. 1027; [1987]2 All
16 li.ll.R c.. 500; (2004)1<11( I) I S.II V,. (20114) ) "-I N I I 7H; (2/)fH) 1·1~ S. l.LB ~ I'.R 711>; 3X II L Ie .<,7; (19K7) X41 .. S(i IXX2; (1')X7) IYI N.J. .. I 452; (I'JX'!) III 8..1 XU7 CA
572 . •. • . . . ' ., . . . .. . . I ~ 0 1R (eil' Div) ... 15 052
lI r1clun ( 1 1111 of' 1\'lnltnl'~b(1)'1 \. StrOll lit l'ark"' l (A l'IJrtll c r~ltlp) (20(lK I PWII( H4 (C)f1); 1111 lIalki Shipping Corp V Sopex Oils Ltd ('1 he lIalki) 119'!X] I W.L.R. n(,; [1l)'iX]2 AIII~.R 23:
Con. 1..1{ foR; [lOIlKI 5 t\~~IS LIt 711>. (200S) IIJ S(l~ ) L.SlI. 4; (200l<) 15K N. J...l. 4!1IJ: [199H] I Lloyd's Rep. 4()5; [1'i<)H] c. L.c' 5H3; (199H) 142 S .I. L.ll. 44; [1<)9H] N.r.c. 4 CA (Civ
(200R) 152( 14) S.J.L.. II 29 . . . . .. " .. 15 Ilx4 Div) .... . . . . . . 1- 018
l'~'rtlral Lnlldnll PWpclty rlUSI Ltd v llig lt I rees 1I0use Ltd [19471" I} 13f1, [1<)5611 AIII :.. R.15h Iialsey v iVlillon Keynes Genelal NilS 'Ilusl [2004JI(WCA Civ 57(,; [200411 W.L.R. 3002: (2004)
(Note); 62 TL.R. 557: [1947] U.R. 77; 175 L.T. 333 . . . . . . . .. . .. 4- 084 4 All E.R ')20; [2004] C P. Rep. 34; [2004]3 Cosls L.R 393; (2005) 81 Ll.M.L.R. 108; (2004)
Chalbury McCouallnternational Ltd v PG Foils Ltd [2010] EWIIC 2050 (TCC); [2011]1 All E.R. 101(22) LS.U 31; (2004) 154 N.L..1 76'i; (20()4) 14K S ..I.L.ll 629 .. 5-061 , 5 -065,5- 072,
(Co111m) 435; [20 II] I Lloyd's Rep. 23; [20 10] 2 c.L.C. 181; [20 I 0] n.L. R. 593 . . . . . . 6 -027 5 076, <) 037,
Coco v AN Clark (Engineers) Ltd [1968] F.S.R 415; [1969] R.P.C. 41 Ch J) . . . . . 15--014 14001, 16--016, 17·-012
Corely Ltd v Bingham [2016] EWHC 240 (Co111m); [2016]2 All E.R, (Co 111 111) 129; [2016] B.L.R. I [ariz & Haque Solicitols v Legnl Ombudsman & Tnhira Quercsl1i. See R. (on the application or
187; 164 Con, L.R . 39; [2016] C.I.L.L. 3801 . . . . . . . . . . . . . . . . . . . . . . . . .. 6- 025 lIa1iz & Haque Solicitors) v Legal Ombudsman
Colarusso v Petersen 61 Wash. App. 767; 812 P. 2d 862 (1991) .... . . . . . . . . . , . .... 5·- 079 Hayter v Nelson & tlomc Insurance Co [1990) 2 Lloyd's Rcp. 265; 23 Con. L.R. 88 QBD
C01l11ney & Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd [1975] I WL.R. 297; [1975] I All E.R. (Comm) , . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . 1- 015
716; 2 B.L.R. 97: (1974) 119 S..I. 134 CA (Civ Div). .... . .. 21 --030 Hcnley v Henley (Bligh cited) [1955] r 202; [1955] 2 W L. R. R51; [1955] I All F. R. 590 (Note);
Couwenbergh v Valkova [2004] EWCA Civ 676; [2004] c.P. Rep. 38; [2004] WTL.R . 937; (2004) (1955) 119J.P. 215;(1955)99SJ.260PDA . . . . . . , . , . . . . . . . . . . . . . . . . . . . 15- 071
148 S..I.L.B. 694 . . ... ,.. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 5- 065 lIolioway v Chancery Mead Ltd [2007] EWHC 2495 (TCC); [2008] I All E.R. (Comm) 653; 117
CTB v News Group Newspapers Ltd [20 II] EWI-IC 1232 (QB) ... " . . . . . . . . . . . . 15 -020 COil. L.R. 30 . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . ... . . . . . . . . . . . . . . 21 - 034
Cumbria Waste Management Ltd v l3aines Wilson (A Finn) [2008] EWIIC 786 (QIJ); [2008] J3.L.R. lIomepacc Ltd v Sita South East Ltd [2008] [WCA Civ I; [2008] T.C.L.R. 4; [2008] 1 P. & C.R.
330 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .... . . . . . . . . . . . 15- 098 24; [2008] N.P.C. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7--041
Cutts v Head [1984] Ch. 290; [1984] 2 WL.R. 349; [1984] I All E.R. 597; (1984) 81 L.S.G. 509; lDA Ltd v University of Southampton [2006] EWCA Civ 145; [2006] R.P.C. 21; (2006) 29(5) I.P.D.
(1984) 128 SJ. 117 CA (Civ Div) . . . . . . . . . . . . . . . . . 3-008, 15-054, 15- 125 29038 . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 5- 059
D (Minors) (Conciliation: Disclosure oflnformation), Re [1993] Fam. 231; [1993]2 WL.R. 721; J v B (Challenge to Arbitral Award); suo nom DB v DLJ; .I v B (Family Law Arbitration: Award)
[1993]2 All E.R. 693; [1993]1 EL.R. 932; [1993]1 EC.R. 877; [1993] Fam. Law 410; (1993) [2016] EWHC 324 (Fam); [2016]1 W.L.R. 3319; [2016]2 EL.R. 1308: [2016]3 F.e .R. 117;
143 N.L.J. 438 CA (Civ Div) . . . . . . . . . . . . . . . 5- 019, 15--072, 15- 073, 15--125-15- 127 [2016] Fam. Law 562 . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-065
D v National Society for the Prevention of Cruelty to Children (NSPCC) [1978] A.C. 171; [1977] 2 Jones v Sherwood Computer Services Pic [1992] 1 W.L.R. 277; [1992] 2 All E.R. 170; [1989] E.G.
WL.R. 201; [1977] I All E.R. 589; 76 L.G.R. 5; (1977) 121 S..I. 119 HL .... 15-044, 15- 045, 172 (C.S.) CA (Civ Div) .. . . . . . . " .. . . .. . .... . . . . . . . . . . . 7-042
15-068, 15- 127 MacDonald Estates Pic v National Car Parks Ltd [2009] CSIH 79A; 2010 S.c. 250; 2010 S.L.T
DB v DLJ. See J v B (Challenge to Arbitral Award) 36 .... , . . . .. . .. . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7--048
Deweer v Belgium (A/35) [1980] E.C.C. 169; (1979-80) 2 E.r-l.R.R. 439 . . . . . . . . . . . . . 5-072 McKennitt v Ash [2006] EWCA Civ 1714; [2008] Q.B. 73; [2007]3 W.L.R. 194; [2007] E.M.L.R.
Director General of Fair Trading v Proprietary Association of Great Britain; sub nom Medicaments 4; (2007) 151 S.J .LB. 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 15- 019
and Related Classes of Goods (No.2), Re [2001] I WL.R. 700; [2001] U,K.C,L.R. 550; [2001] Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] C.L.C. 739; [1999] B.L.R. 93;
l.C.R. 564; [2001]1-l.R.L.R. 17; [2001] UKH.R.R. 429; (2001) 3 L.G.L.R. 32; (2001) 98(7) (1999) I T.C.L.R. 113; 64 Con. L.R. I; [1999]3 E.O.L.R. 7; [1999]37 E.G. 173; (1999) 15
L.S.G. 40; (2001) 151 N.U. 17; (2001) 145 SJ.L.B. 29 CA (Civ Div) . . . . . " . . . . . 7-038 Cons!. L.J. 300; (1999) 96(10) L.S.G. 28 QBD (TCC) . . . . . . . . . . , . . . . . . . . . . . . 7- 008
Douglas v Hello! Ltd (No.1) 2001] Q.B. 967; [2001]2 WL.R. 992; [2001]2 All E.R. 289; [2001] Macro v Thompson (No.3) [1997]2 B.C.L.C. 36 Ch D . . . . . . . . . . . . . . . , .... . . . . . 7- 039
E.M.L.R. 9; [2001]1 EL.R. 982; [2002] I F.C.R. 289; [2001] H.R.L.R. 26; [2001] U.K.H.R.R. McTaggart v McTaggart [1<)49] r. 94; [1948]2 All E.R. 754; 64 T.L.R. 558; 46 L.G.R. 527; [1949]
223; 9 B.H.R.C. 543; [2001] F.S.R. 40 ... . . . . . . . . . . . . . . . . . . . . . . 15- 018 U R. 82; (1948) 92 S J 617 CA ........ . . . . . .15-070,15-124
Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002; [2008] I WL.R. 1589; [2008] I All Medicaments and Related Classes of Goods (No .2), Re. See Director General of Fair Trading v
E.R. 1156; [2008] L FL.R. 1294; [2008] Fam. Law 317; (2007) 151 SJ.L.B. 1364 . . . . . 5-060 Proprietary Association of Great Britain
Ellerine Bros Pty Ltd v Klinger [1982] I WL.R. 1375: [1982] 2 All E.R. 737; (1982) 79 L.S.G. Mercury Communications Ltd v Director General of Telecommunications [1996] 1 W.L. R. 48;
987; (1982) 126 SJ. 592 CA (Civ Div) . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 1- 016 [1996] I All E.R. 575; [1995] c.L.c. 266; [1998] Masons CL.R. Rep. 39 HL ... 7- 036,7--042
Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd [2014] EWHC 2104 (Comm); Michael Wilsoll & Partners Ltd V Emmott; sub nom. Emmott v Michael Wilson & Paliners Ltd
[2015] I WL.R. 1145; [2014]2 Lloyd's Rep. 457; [2014]2 c.L.c. I; (2014) 164(7615) N.U, [2008] EWCA Civ 184; [2008] Bus. L.R. 1361; [2008] 2 All E. R. (Comm) 193; [2008] I
19. , . . . .. . . . .. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-017 Lloyd's Rep. 616; [2008] c.P. Rep. 26; [2008] B.L.R. 515 CA (Civ Div). . . . . . .. .. 15-029
Emmott v Michael Wilson & Partners Ltd. See Michael Wilson & Partners Ltd v Emmott Mole v Mole [1951] P. 21; [1950] 2 All E.R. 328; 66 T.L.R. (Pt. 2) 129; 48 L.G.R. 439; (1950) 94
Essex CC v Premier Recycling Ltd [2006] EWHC 3594 (TCC); [2007] B.L.R, 233 . . . . . . . 6- 038 S.J 518 CA . .. .... . .... , . " . . . . . . . . . 15- 069,15- 070
Esso Australia Resources Ltd v Plowman (Minister tor Energy and Minerals) (1995) 128 A.L.R. Muller v Linsley & Mortimer [1996] P.N.L.R. 74; (1995) 92(3) L.S.G. 38; (1995) 139 S.J.L.B. 43
391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , 15-026, 15-028 CA (Civ Div) . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . , . . . . 15- 100,15-101
Exfin Shipping (India) Ltd Mumbai v Tolani Shipping Co Ltd Mumbai [2006] EWHC 1090 Mustad v Dosen; sub nom. () Mustad & Son v S Allcock & Co [1964] I W.L.R. 109 (Note); [1963)
(Comm); [2006]2 All E.R. (Comm) 938; [2006]2 Lloyd's Rep. 389 . . . . . . . . . . . . . . 1- 019 3 All E.R. 416; [1963] R.P.C. 41 HL . . . . . . . . . . . . . . . . . _ . ' . . . . . . . . . . . . . . 15-016
Farm Assist Ltd ([n Liquidation) v Secretary of State for the Environment, Food and Rural Atfairs Myerson v Myerson [2009] EWCA Civ 282; [2010] I W.L.R. 114; [2009]2 EL.R. 147; [2009]2
[2009] EWHC 11 02 (TCC); [2009] B.L.R. 399; 125 Con L.R. 154 ... 9-041, 15-089, 15-Jl6, F.C.R. I; [2009] Fam . Law 564; (2009) 106(15) L.S.G. 16; (2009) 153(13) S.J.L.B.
15- 127 28 . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15- 078
Fraser v Evans [1969]1 Q.B. 349; [1968]3 WL.R. 1172; [1969]1 All E.R. 8; (1968) 112 SJ. 805 Nikko Hotels (UK) Ltd v MEPC Pic [1991]2 E.G.L.R. 103; [1991]28 E.G. 86 Ch D . . . . . 7- 038,
CA (Civ Div) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-014, 15- 036 7- 042

xxxii XXXlll
 TABI ,I\ OF CASI ~ S I·A IlU ·: OF CA SLS

Nukln Corp \ IlIled);gll:l1 I whllt,l"IlY 1.. ,,1' ['\111'1) EW1(C 2'.'20 (1'.11) : (2(Jo5) 21(15) I l'D. Rush & IOlllpkills lAd \' (;I\~ atc i I olldoll COlillcil 119XXI :~ W.L R 5.l.l; I I <)X!;J 1 /\11 I, R 54'); 40
2t(1I39 •. • • • •• •• •. ••• .2 1 U21\ 11.1. R 51 ; (I ')XX) I3X N I,J Rep 22 ; (I <lXX) 1.12 S..! . 265 CA (ei\' liiv) I:) 05l>, 15 05X,
NI, "Ir.., ll1 lt II A \. n "lck crum h (nnSlrll\:ll<ln (0 I r I II 'IM I I). Ii (,.j.t.(llJR.J1 2 W I. R (.76; [ I!)IN I 15 05')
2A IlI' lt 17:'i;21>11I H 1 · 11 '}~hlll l .1. 2.j.j:(I)H ~)1 1KS ..127'1 'A(("h I{WI , NPUlVCI Pic v Aistolll rowc, Ltd 12010] J:WIIC 30(,1 (TO .); 1.1] COil. I..R. 155 7 om
Dlv) . . ' . ,.. 2 1 n.l l,l l 032 S v K Ltd Fed SliP Ci ol'Swi1zerlmHIICC Aibillatillil T,il>lIl1al ill Zlirich, ATFIB(i! ' 11f> II
l kcll nbul k hipping &. I rmhn!! S,\ \' 'I M' I ARia I 1<1 [2010J U I Sl' .j.j, [2011 11 A.C (x.2; I2 UIO I 1 039 . . . . . . . . . . . . . . . ... . . . . .. .... . . . , 6 .035
W,I .It 1424: r20lrJ1 4 All t· It 11111 : (10111 I All 1,. 1{, ( '11111m) I, p Ol l] I LltI)'d's Rep. 1) 6 ; S v S (Arbi Ira I Aw(\,d: Apl'lllval) [2014] I"VIIC 7 (Fam); [2014] I W L.R. 2299; [20141 I FL. R.
llOIO ! '('1.<' hll(.; [10 1j I II I II I nH'llIl L (t, 62 I 11 11J I C< ' ~ l sl. R J'll; [?!lI Il] 1257; 1201412 I'T Ie 4X4; 120141 hlill Law 44X; (2014) 15X(3) S.J I. B. ]7. .. , (, 0(,4
(" I.LI ,. 21)~1 .I ... I~ (11,·1. 15· IUJ, 15 11l·1 Saltman Enginecling Co v Campbell Fngincering Co (194X) [1903]3 All E.R. 413 (Note); (194X)
OI"lIluc v Bosscrl [200!)] UK II L 10; [200!)] I A.C 990; [200!)] 2 W L R. 749; [2009] 3 All E R 93; 65 R P.C 203 CA . . . . . I ~ .-() 15
[2010] I FL.R. 475; [2009J 2 P & C.R. 17; [2009]2 E.G.L.R . 97; (2009] Fam. Law 1042; Santa Fe International COJ p v Napier Shipping SA (No.1) , 19X5 S .L.T. 430 011 . , 15 -047
[2009]11 E.G. 119 (es .); (2009) 100(12) LS.G. 15; (2009) 153(11) S..1.L.B. 29; [2009] N.P.C Scollv Avcry (IX56) 10 I ~ R. 1121;(1856)511.L.Cas 811 ilL . . . . . . . . . . . . . . . 21 . 012
40 . . . .. .... . . . . . . . . . .. .. .15 ·062 SiclI<I Fishing Co v Parran [2015] HWIIC 140 (('omm); [2015] I All ".R . (Comm) 560; [2015] I
Owen Pell LId v Bindi (London) Ltd (200S] EWHC 1420 (TeC); [2008]13.L.lC 436; (2009) 25 Lloyd's Rep. 514 .. . ... . . . .... ,. ... . . . . .. . . . . . . . . , .... 6- 022, 6-.025
Const. L.1. 168; [2008] CI.L.L 2005 .. 7- 037 Slade-Powell v Siade-Powcli (1904) 108 S.J. 1033 . . . . . . .. . 15· 071
Pais v Pais [1971] P. 119 ; [1970]3 W.L.R.Il30; [1970]3 All E.R. 491; (1970) 114 S ..I. Spiliada Maritime Corp v Cansulcx Ltd (The Spiliada) [1987] A.C . 460; [1986] 3 WL .R 972;
72 , . . . . . . . . . . . . . . .. . . . .......... , ... .. . . . . . . . 15·-071 [1980]3 All E.R. 843; (1987]1 Lloyd's Rep. I; (1987] E.CC. 108; [1987]1 F.TLR. 103;
Philips Eiectloniyue Grand Public SA v British Sky Broadcasting LId [1995] E.M.L.R. 472 CA (1987) 84 LS.G. 113; (1986) 136 NLI. 1137; (1986) 130 S.J. 925 HL . . . . . . . . ... 21 - 041
(Civ Div) . . . . . . . . . . . . . ' . .. . . . . . . . . . . . . . . , . . . . . . . . . . . . . 4--081 Sucalina SA v Rotenberg. See Rotenberg v Sucatina SA; sub nom. Sucalina SA v Rotenberg
Porter v Magill [2001] UKHL 67; [2002]2 A.C 357; [2002]2 WL.R. 37; [2002]1 All E.R . 465; Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA(20 12] EWCA Civ 638; [2013] I
(2002] H.R.L.R. 16; [2002] H.L.R. 16; [2002] B.L.G,R. 51; (2001) 151 N.L.1 . 1886; [2001] W,LR. 102; [2012] 2 All E.R. (Comm) 795; [2012] I Lloyd's Rep. 671; [2012] 2 c.L.c. 216;
N.P.C 184. . . . . . . . . . . . . . . . . .. . ..... 6-025, 7- 039 [2012] Lloyd's Rell. LR. 405 . . . . . . . . . . . .. .. . .... . . . . . . . . . . . . . . 21 .037
Pozzi v Eli Lilley & Co, Times, 3 December 1986 , . . . . . . . . . . . , . . . . . . . . . 15-051 Sun Life Assurance Co of Canada v CX Reinsurance Co Ltd (lo1"1nerly CNA Reinsurance Co Ltd)
Practice Direction (Fam Div: Ancillary Relief Procedure) [2000] I WL.R. 1480; [2000] 3 All E.R, [2003] EWCA Civ 283; [2004] Lloyd's Rep. LR. 58. .. . . . . . . . . . . . . . , . . . . . ,21 --027
379; [2000]1 F.LR. 997; [2000]2 FCR. 216 , .. "." . . . . . . . . . . . . , . . . . . . 15- 078 Swain Mason v Mills & Reeve [2012] EWeA Civ 498; [2012] S.Tc. 1760; [2012]4 Cosls LO.
Placticc DiICction (Fam Div: Family Procccdings: Financial Disputc Resolution) [1997] I WL.R. 511; [2012]W.TLR. 1827; [2012] S.TI. 1511 ., . . . . . . . . . . . . , .... , . . . . . . . . 5-066
1069; [1997]3 All E,R. 768; [1997]2 FL,R. 304; [1997]3 FCR. 476 . . . . . . . ,.,. 5- 019 Teekay Tankers Ltd v STX Offshore and Shipbuilding Co Ltd (2017] EWHC 253 (Comlll); [2018]
Practice Statement (Comm CI: Alternative Dispute Resolution); sub nom. Practice Note (Comm Ct: I All E.R. (C0111111) 279; [2017]1 Lloyd's Rep. 387 . . . . . . . . . . . . . . . . . . . . . . . . 15- 029
Alternative Dispute Resolution) (1994]1 WLR. 14; [1994]1 All E.R. 34; [1994] CL.C Thames Valley Power Ltd v Total Gas & Power Ltd [2005] EWI-fC 2208 (Comm); [2006] I Lloyd's
II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , .5-049 Rep. 441; (2006) 22 Const LJ. 591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1- 020
Practice Statement (Commercial Cases: Alternative Dispute Resolution) (No.2); sub nom. Practice Theodoropoulas v Theodoropoulas [1964] p, 311; [1963] 3 WLR. 354; [1963] 2 All E.R, 772;
Note (Comm Ct: Alternative Dispute Resolution) [1996]1 WL.R. 1024; [1996]3 All E.R, 383; (1963) 107 S.J. 632 Assizes (Winchester) . . . . . . . , . . . . . . . . . . . . . . , .... , . , . 15- 071
[1996] CL.C 1042; (1996) 93(23) L.S.G. 36 . . . . . . . . . . . . . . . . . . . . . . . . . , . , .5-049 Three Rivers DC v Bank of England (Disclosure) (No.4) [2004] EWCA Civ 218; [2004] O.B. 916;
Property Alliance Group Ltd v Royal Bank of Scotland Pic [2015] EWHC 1557 (Ch); [2016] I [2004]2 WL.R. 1065; [2004]3 All E.R . 168; (2004) 101(11) L.S,Q. 36; (2004) 154 N.Ll. 382;
WL.R. 361; [2015]2 B.CL.C 401 .. , .. , . . . . . . . , .. , . . . . . . . . . . . . 15-062, 15-064 (2004) 148 SJ,L.B. 297 . , . . . . . . , .. . . . . . . . . ,. , . , . , . , . . . . . , . . . . . . . 15-048
R. (on the application of Cart) v Upper Tribunal [2011] UKSC 28; [20 II] 3 WL.R. 107; [2011] Tiedel v Northwestern Michigan College 865 F. 2d 88 (6th Cir. 1988) . . . . . . . . . . . . . . ,5- 079
P.T.S.R. 1053; [2011]4 All E.R. 127; [201 I] S.T.C 1659; [2011] S,T!. 1943; (20 II) 161 N,Ll. Tomlin v Standard Telephones & Cables Ltd [1969]1 WLR. 1378; [1969]3 All E.R. 201; [1969]
916; (2011) 155(25) SJ.L.B. 35 . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,7- 053 I Lloyd's Rep, 309; (1969) 113 SJ. 641 CA (Civ Div) ... . .. , . . . . . , , . . . . . . . . 15-056
R. (on the application of Cowl) v Plymouth City Council; sub nom Cowl (Practice Note), Re; Cowl Tubcworkers v Tilbury Construction (1985) 30 B.L.R. 67; (1985) I Cons!. LJ. 385; [1985] C,!.L.L
v Plymouth City Council [2001] EWCA Civ 1935; [2002]1 WL.R, 803; [2002] CP. Rep, 18; 187 CA(Civ Div) ., . . . . . . . , . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 - 031
(2002) 5 CeL. Rep. 42; (2002] A.C.D. II; [2002] Fam. Law 265; (2002) 99(8) L.S.G. 35; Unilever Pie v Procter & Gamble Co [1999] I WL.R. 1630; [1999] 2 All E.R. 691; [1999] FS.R.
(2002) 146 SJ.LB. 27 ... . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-005, 5- 056 849; (1999) 22(5) I.P.D. 22042; (1999) 149 N.L.1. 370 Ch 0 (Patents Ct) .... 15-061,15-063
R, (on the application of Crawford) v Legal Ombudsman [2014] EWHC 182 (Admin); [2014]4 Vestergaard Frandsen Sf A (now called MVF3 APS) v Bestnet Europe Ltd [2013] UKSC 31; [2013]
Costs LO. 560; [2014] A.CD . 100 .... . .. , , , . . . . . . . . . . . . . . . . . . . . .. 18-037 I WLR . 1556; [2013]4 All E.R. 781; [2013]!.C.R . 981; [2013]l.R.LR. 654; [2013J E.M.L.R.
R. (on the application of Hafiz & Haque Solicitors) v Legal Ombudsman [2014] EWHC 1539 24; [2013] R.P.C 33; (2013) 157(21) SJ.L.B, 31 , . , . . . . . . . . . . . . . . . . . . . . . . . 15- 014
(Admin) , .. , . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . , .18- 038 W v Egdell [1990] Ch. 359; [1990]2 WLR. 471; [1990]1 All E.R. 835; (1990) 87(12) L.S,G. 41;
R. (on the application of Rosemarine) v Office for Legal Complaints (2014] EWHC 601 (1990) 134 SJ. 286 CA (Civ Div) ., . . . . . . , . . . . . . . . . . , . . . . . " . . . . . . . . 15 -036
(Admin) . . . . . . . . . . . .. . . . . . . . . . . . . ,., .. ,.... . . . . . . . . . . . " . . 18- 038 Walford v Miles [1992] 2 A.C 128; [1992] 2 WI.. R. 174; [1992] I All E.R. 453; (1992) 64 p, &
R, v Lewes Justices Ex p. Secretary of State for the Home Department. See Rogers v Secretary of CR. 166; [1992] I E.G.L. R. 207; [1992] 11 E.G. 115; [1992] N.P.C. 4l-IL ... , .4-079, 4- 080,
State for the Home Department 4-086,4-088,21-030
Reed Executive Pic v Reed Business lntonnation Ltd (Costs: Alternative Dispute Resolution) Walker v Wilsher (1889) L.R. 23 O.B.D. 335 CA .. , . . . . . . . . . . . . . . . . . 15-056,15-057
[2004] EWCA Civ 887; [2004] I WL.R. 3026; [2004] 4 All E.R. 942; [2005] CP. Rep. 4; White (Pamela) v White (Martin) [2001]1 A.C 596; [2000]3 W.L .R. 1571; [2001]1 All E,R , I;
[2004]4 Costs L.R. 662; (2005] FS.R. 3; (2004) 27(7) I.P.D. 27067; (2004) 148 SJ.L.B. [2000]2 FL.R. 981; [2000]3 FCR. 555; [2001] Fam. Law 12; (2000) 97(43) L.S,G, 38;
881 . . .. , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15- 095 (2000) 150 N.L.J. 1716; (2000) 144 SJ.L.B. 266; (2000] N.P.C III ., ..... , ... , .11 - 125
Rogers v Secretary of State for the Home Department; sub nom R. v Lewes Justices Ex p. Secretary
of State for the Home Department [1973] A.C. 388; [1972] 3 WL.R . 279; [1972] 2 All E.R.
1057; (1972) 116 SJ. 696 HL ., . . . . . . . . , . . . . . . . . , .. . .. .. . . . . . 15-043,15- 045
Rotenberg v Sucatina SA; sub nom. Sucafina SA v Rotenberg [2012] EWCA Civ 637; [2012] 2 All
E.R. (Comm) 952; [2013] Bus. LR. 158; [2012]2 Lloyd's Rep, 54; [2012]2 CL.C
20 .... , . , , . . . . . . . . , . . . . . . . . . . . . , . .... ,. . . . . . . . . . . . . . . . " .. 6--039

xxxiv xxxv
 TABLE OF STATUTES

United Kingdom S.O~ .•••• ••• 21 004

I X98 CI iminal Evidence Act sN) . • ..•... . .21 004
(I ) (, (I .n, (, (I.l~
(036) , .. 15 046
1%7 l'allial1lcnl'lIY COllllllissitlllCI Act (2) (K) .. • .6 em
(01J) .... I~ 006
(.1)( ,1) .. . . • 6- 03X
I96X Civil Evidcnce J\ct (e 64) s .7U 6- 037
~ . 71 . .... 6 -037
5.14 ... , .. 15046
I ')72 Criminal .Iustice J\ct (c. 7 1) 12 ()l)0 ~ . 7:I . 11 034
197:; Arbitration Act (cJ) . 1 ·0 1:\ 1-0 I R Family Law Act (c.27). . . . II -008
s.1 . . . . . . . . . ... _ .. . . , . I 015 Trusts oj" Land and Appointment of'
Employment PlOtectilJn At:[ Trustces Act (eA7) . . . . . II 065
(c .71) . . . . . . . . . .1300S I-lousing Grants, Constructioll and
19K4 Telecommunications Act Regelleration Act (c. 53) . . . . . I- U2I,
(c.12) . . . 21 004 2-007,7· 004, 7- 005,
Police and Criminal Evidence Act (c.60) 7· 007,
s.RO .... 15-040 21 - 002
1989 Children Act (cAl) s.108 .. .. .. . .. . .. 7- 008
s.8 . . . . . .. . . .... ••. . I I -065 1997 Civil Procedure Act (c.12) . . . . . 3--008,
s.98(2) . . . . . 15 074 21-001
Sch.1 . . . . . . . . . . . . . . . . 11-005 1998 Employment Rights (Dispute
1990 L~w Reform (Miscellaneous ProvisilJns)
Resolution) Act(c.8) . . . . . . 14 007,
(Scotland) Act (c.40) 14-014
Sch.7 . , . . . . . . . . . . . . . . &-011 s.8 ..... . . . . . . . . . . . . . 14--014
Courls and Legal Services Acl Data Protection Act (c.29)
(cAl) . . . . . . . . . . . . . . . . 18-007 Pt IV .. . . . . . . . . . . . . . 22- 030
1991 Water Industry Act (c.60) . . . . . 21-004 Sch.7 . . . . . . . .. . . . . . . 22-030
1995 Civil Evidence (Family Mediation) Human Rights Act (cA2). 2 - 006, 15-017
(Scotland) Act (c.6) . . . . . . . 15-006 1999 Access to Justice Act (c.22} ... 11 - 008,
1996 Employment Tlibunals Act (c.17) 22-032
5. I 8(7) . . . . . . . , . . .. .. 15-076 2000 Criminal Justice and Court Services Act
Arbitration Act (c.23) ... 1- 018,1-021, (cA3) . . . . . . . . . . . . . . . . 11-012
2-021, 2-023, 6-008, 2002 Justice (NOIthern ireland) Act
6--011,6-012, &-013, (c.26) . . . . . . . . . . . . . . . . 12-094
6--021, 6--027, 6-028, Proceeds of Crime Act (c.29} .. 15-0 II,
6- 030, 6--036, 6--037, 15·-036, 15- 106
6- 041, 6- 065, 7-006, s.328 . . . . . . . . . . . 15- 106,15- 110
7- 058, 15-140, 2004 Civil Partnership Act (c.33).... 11 - 009,
21-002, 21-004, 15-006
21 - 013,21-044 2006 Family Law (Scotland) Act (asp
5.1 .. . , • . . . . . . . . . . . . . 6-010 2) . . . . . . . . . . . . . . . . . . 15- 006
(b) . . . . . . . . . . . . . ... . 1-018 2007 Tribunals, Courts and Enlorcement Act
s.2(4) ....•.••.•.. . .6-027 (c. 15) . . . . . . . . . . . . . . . . . 7--054
s.t) . , •••....•...•.•.. . 1-018 Legal Services Act (c.29) . . . . . 18-007
(I ) . .. ..,.. .. . . .. . 21-026 5.12(4) . . . . . . . . . . . . . . . 22- 030
$'. 15 21 . .. . . . . . . . . .. 6-021 2008 Employment Act (c.24). . . . . . . 13-004
. 16 .. .......... .6-021 2014 Children and Families Act
(c.6) . . . . . . . . . . . . . . . . . 22- 025
s.24( I lea) ... , .• , . . . . . .6-021
8.30 . • . . . . . . • . . • . . .. .6-034 s.IO . .,. . . . . . . . . . . . . 2- 002
(I) . . . . . . . . . . . . . . . . . 5--00 I
s.31 .. . • . .. . ...•.•..• . 6-034
s.32 ...• . . . . . • . . . . . . .. 6-034 2018 Data Protection Act (c.12) . . . . . 22-029
s.33 .... , ..•. , , . . . . .6-030
sJ4 • . . . . • • . . . . . . .6-030 Australia
5042 •...••••••....... . 7-006 20 I0 Commercial Arbitration Act (NSW)
ss,46-58 • • • . . . . •. .6--036 No.61 . . . . . . . . . . . . . . . . 19-091
5.58 . , •....•..•.•. , .. . 6--036 s.27D(4) . , . . . . . . . , .... 19-091
ss.59-65 . . . . . . . . • . . • . . 6--041 (7) . . . . . . . .. . . . . . . . 19- 091
s .67 . . . . . •. . . , •.•. . • 21--004

xxxvii
 TABLE OF STATlJl'l':S

s 17 15 OO!)
Austda
I H95 Cod.: 01 Civi I Plllccdur.:
s.594(1) lilns Japan TABLE OF TREATIES AND CONVENTIONS
1951 Civil Conciliatioll Act .. 5 ·on
2004 Ad on Plollloti(ln or Use or Alternative 1950 EUlopcan Conwntion 011 Iluman Rights (a), (b) and (el ..
Canada .22 () II
Dispute Resolution (Act No 151 or and Fundamental 195H
2002 Code orCivil Pmecdlll': (c.7) 5 OX9 Convention on the Recognition Hnd
2004) . ... 5 097 FI cctiOIllS 15 () I X FnIC1ICcI11cnt ol'l,'orcign Albitral
arl.6 . 5 OM,') 072,.'i 073, 5 07(" Awm'os (New YOlk
China Switzerland 10 046 Convcntion) 6 OO?, 22 .() 12,20 035
199 I Law 01' Civil Plocedurc 5 099 arUl 15 017, 15 0 I9, 15-020, 1989
1907 Civil Code. 4- 082 United Nations Convcntion on the
Ch.VIIi . 5 099 15-03/i Rights of the Child 11 - 040
1987 Federal Private IntClnational Law
Act . . (, -035 arl.IO. 15 017, 15 -019,15 036 art 12 . . . . . . . .• . I I 040
Germany s.l92 /i 035 1957 EC Treaty (Treaty I~stablishing the
199X Code of Civil Procedure Etnopean Community)
(Zivi Iprozessordnung) 4 - 082, 5-092 arL/i5 . . . .. . 22- 0 II
... . 5-092
United States of America
arl.278 ..... .
2004 Unfair Competition Act General Laws of the COlllmonwealth of
s.3a ....... . . 20 -030 Massachusetts
2012 Mediation Act s.23C . . . . . . . . . . . . . . . . . . . . 15--024
(Mediationsgesetz) 5-094 1975 Federal Rules of Evidence ..... 19-104
1998 Alternative Disputes Resolution
Act . . . . . . . . . . . . . . . . . . 5--087
India s.65 I . . . . . . . . . . . . . . . . 5--087
1908 Code of Civil Procedure 2000 Revised Uniform Arbitration
s.89 . . . . . . . . . . . . . . . 5 103 Act . . . . . . . . . . . . . . . . . . 6 061
1987 Legal Services Authorities Act 2001 Unifonll Mediation Act .. 2-002,3- 033,
s.4 . . . . . . . . .. . .... . . . 5-102 15-007, 15- 009,
1996 Arbitration and Conciliation 21-002
Act. . . . . . . . . . . . . . . . 5-102

Ireland
2017 Mediation Act (c.27) .. . . ... 15- 008
s.IO ..... ... . . .• . . .•. 15-008

XXXVlll xxxix
 TABLE OF ARBITRATION AND PRACTICE
RULES
197(' Rules of Con(;i lialion <Inti AI hi lratioll 20114 Mudd Family Law Arbilralioll Act
(UNCITRAL,lcviscd (AAML) ...... . .6 -061
2(10) (, OO~ 6 -023, 21 013 21112 Rules of Arbitration (ICC) ..... 6 -035,
arlo'.! . . . . • . . . .6 023 6 041,21 - 013
art. 12( I). . . . . . . . . . . . . . 6--023 arl.28 . . . . . .. . ........ 6 --015
art.27 . 7 050 <lrt.38.4 . . . ....... 6041
19~W Conciliation Rulcs 2014 Rules ofArbilration (London Court of
(UNCITRAL) . . 8-013 lnlt!rnationaIAlbitraliol1)
19R5 Model Law on International Commercial art.2R . . . . . . . . ... 6 -041
Arbitration (UNCITRAL, revised 2015 lixpert Rules (ICC) . . . . . . . . . . 7- 050
2002, 2006) . 6- 008, 6- 0 II, 6-023 2018 Arbitration Rules (Family Law
art.5 . . . . . .. . ......... 6-015 Arbitration Children Scheme)
arI.9..... . . .... . 6-015 art.I7 . . . . . . . . . . . . . . . . . 6--063
ar1.28.3 . . . . . . . . . . . . . . . . 6 045
200 I ADR Rules (ICC) . . . . . . . . . . . 8-018
2002 Model Law on International Commercial
Conciliation
(UNC1TRAL) .. . 15- 007,15-009
art I 0 . . . . . . . . . . I 5--007

xli
 TABLE OF RULES OF COURT
1965 Rltles or the Supr"lllc COUlt (SI 1.44.3 ., . . . . ... 5 -005, 22·-018
1965/1776) ... 2-010 t44.5 . . . . . . . . . . . . . . . . 22- 018
1991 Family Proceedings Rules (SI Il)l)l) Family Proceedings (Amendment No.2)
1991/1247) . 5019 Rules (SI 1999/3491). . . . .. 5 -019
r.2.75(1) .5 019 2009 Ptactice Direction -- Pte-Action Conduct
1998 Civil Procedure Rules (SI para.8.1 .... 5- 011
1998/3132) ... 2·0 I0, 3- 008, 5-001, 2010 Family Procedure Rules (SI
5 - 003, 5 006, 20 10/2955) .. 5--006, ') -038
5 057, 7-044, 10--093, PI 3 ... 5-006, 5-008, 5- 013, 5- 043
15-061, 15-075, r.3.1 . . . . . . .. .... .5- 007
21 - 001,22-018 r.3.2 . . . . . . . . . . . . . ..... 5- 007
1'1 I •. _ . • • .. . .. 5-003, A3-004 r.3.3. . . . . . . . . . . . . . . . . 5-007
r. 1 • . •. . . . . . . . . . . . 5-003 Practice Direction 3A .5- 008, 5- 012,
r.1 I ( I ) •.••. . . . . . . . . . . 5-003 5-043,9-038, 11 - 011
(2) . .. . • . . . . . . . . . 5-003 Practice Direction 12B
1.12(c) " . . . . . . . . . . . . I-Oil para.5.11 . . . . . . . . . . .. . 15-077
r.14 . .. • .. . . . . . . . . . 22-018 r.35.3 . . . . . . . . . . . . . . . . 15-119
(2)( e) . .... . ...... 5-003 r.354 . . . . . . . . . . . . . . . . 15- 119
Pt 3 ... ..•. . . . . . . . . . . 19-067 2011 Civil Procedure (Amendment) Rules (SI
r.3. 1(2)(1) . . . . . . . . . . . 21-025 2011/88) . . . . . . . . 15-121, 19-100
(m) .. . _ . . . . . . . . . . . . 19-067 Sch.2 s.m r.78.24 . . . . . . . . 19-100
PO 7E . ... . . . . . . . . . . . 20--040 r.78.26 . . . . . . . . . . . . . . 15-121
r.11 ... . . . . . . . . . . . . 21-029 2013 Employment Tribunals (Constitution and
Pt 26.. . . . . . . . . . . . 5-004 Rules of Procedure) Regulations (SI
r.264. . . 5- 004, 21-025, 22-018 2013/1237) . . . . . . . . . . . . 22-025
PO 29 .. .... . . . . . . . . . . 22-018 2015 Practice Direction: Pre-Action Conduct
PI35 .. .••• . . . . . . . . . . . 7-044 and Protocols
r.35.8 .... .. .. . ....... 19-103 para4 . . . . . . . . . . . . . . . . . 1-011
Pt 36 .. . •. . . . . . . . . . . . 15-075 para.8 .... . . . . . . . . . . . . . 1-011
r.36.13 . • .• . . . . . . . . . . 15-075 para.9 . . . . . . . . . . . . . . . . . 1- 01 I
Pt 44 .. ..••. ... . ...... 5-005 para.IO . . . . . . . . . . . . . . . . 1-0ll

xliii
 TABLE OF CODES, PROTOCOLS AND
GUIDANCE NOTES
IlJK] Code 01' [',aclice ,UI(I C,uidancc (Faillily ()1 'lic~
lill Ciill1inal JlIslic~ Relilllll, A
Medialion COllncil) II 0115 Revised ('ode or Practice Illr
1')94 Modcl Sianlialds or P",cticc Conditional Call lions (Adults)
(Associatioll Illl' Conllkt (Slalioncry OJ'iicc: Londun, 2010
Resolulion) . . II 064 para.7.7 .. . . _ .... .. 12 -092
Standard X 11113 . II 064 Technology and Constiliclion Court
199X Plinciple III(x) allached to the Council (juide. 5 - 014,5-015 , 5 051,7 - 044,
oj' [lIIope's Recommendatiun No.R 1,)- 066,
(9S) I on Family 19 - 079
Mediation . . 11-037 pm a. 7 5 I " " " " " ' " 5 --014
1999 Code or Practice ror Family Mediation para.7.6. I . . . . . 5- 014,7--015
(Law Society of ~nglal1J and Wales) s.13 . . . . . . . . .. . . . . . . . 7--044
para.5.?.2 . . . . . . . . . . . . 17074 2011 Cude oj' COllduct (Solicitors Regulation
Codc oj' Practice (lnternct Scrvices Authority) . . . . . . . . 3- 070, 16--012
Providers' Association) . .... 18 -029 para2.02( I )(b) .... 3- 068,22- 018
para.8.2 .... , 18- 029 2012 Guide to Good Practice under the I-Iague
2004 Guidelines on Conllicts of Interest in Child Abduction
International Arbitration (International Convention Mediation.. II 068
Bar Association) 6-024 2011 ACAS Code of Practice 4: "Settlement
pa1'3.6 . . . . . . . . . . . . . . ... 6-024 Agreements (under section III A or
2005 Model Standards of Conduct for the Employment Rights Act 1996)"
Mediators (American Bar (July2013) . . . . . . . . .. . 13- 033
Association) ... 3- 033, 8-028, 8- 041 2014 Guidance for the instruction of experts
2006 Renewable Energy Consumer Code in civil claims (Civil Justice Council,
(RECC) .. , . . . . . . . 18-036 August 2014) . . . . . . . . . . . 19- 103
2007 Code of Conduct (Solicitors Regulation 2015 Family Law Protocol (Law Society of
Authority) . . . . . . . . . . . . . . 3--068 England and Wales) . . . . . . . . 5- 0 10
Code of Practice for Family Mediation s.III . . . . . . . . . . . . . . . . . . 5- 010
(Law Society of England and 2016 ChancelY Guide 5-053, 19-068, 19--069,
Wales) . . . . . . . . . . 1/ - 007,16-018 19-070, 19- 077,
para.5. I 0 . . . . . . . . . . . . . . 19--024 19--078
2008 National Mediator Standards para.18.7 . . . . . . . . . . .... 19--068
(Australia) . . . . . . . . . . . . . . 5-090 para. 18.8 . . . . . . . . . . . . . . 19-068
2009 Code of Conduct for Civil and para.IS.16 . . . . . . . . . . . . . 19-077
Commercial Mediators (Law Society para.18.18 . . . . . . . . . . . . . 19- 077
of England and Wales) ..... 8-007, Code ur Practice for Family Mediators
8- 027, 10--019 (Family Mediation Council,
Guidance Note No. I, Mediation September 2016) , .. 11-049, 11-059
Confidentiality (Civil Mediation para 5.5.3 . . . . . . . . . . . ,. 11 - 059
Council, 8 July 2009) . . . . . . 15-116 para 5.7.2 . . . . . . . . . , ... 11 - 042
2010 Code of Conduct (General Council of para 6.15 . . . . . . . . . . . . . . 11-091
the Bar) . . . . . . . . . . . . . . 16-020 2017 Admiralty and Commercial COUl1s
para.30! . . . . . . . . . . . . . . 16-020 Guide . . . . . . . . . . , .5-049,5-052
Guidance on the obligations of
mediators under the Proceeds of
Crime Act 2002 (Civil Mediation
Council, 15 October
2010) . . . . . . . . . . 15-111,15-1/3

xlv
 CHAPTER 1

Analysing ADR

INTRODUCTION

The resolution of disputes has varied widely across families, cOmmUl1ltles, 1- 001
nations, and internationally, since time immemorial. Mechanisms have included
procedural means (such as the rolling of dice); the battle of the fittest (for
example, pistols at dawn or war between nations); negotiation; mediation; and
adjudication by a third-party (such as a tribal leader or a court judge). For some
time state-administered court-adjudication I has been the prime means of dispute
resolution across nations that adhere to rule of law principles. However, over the
last 40 years or so,2 there has been a fresh impetus to make use of alternative
procedures as a counter to problems within legal systems (such as delay and
expense), and in their own right, as a means to provide individuals and
corporations with choice, flexibility, confidentiality, and autonomy in the
resolution of their disputes. 3 Hence, in many jurisdictions, cOUlis and govermnent
agencies have sUPPOlied and promoted the use of altemative dispute resolution;
mediation and conflict resolution organisations have been established; Bar
Associations and Law Societies have embraced Alternative Dispute Resolution
(ADR) principles; practitioners from a wide range of professional disciplines,
including law, mental health and many others have trained in its use; and there is
a flourishing body of academic and practitioner literature debating its theory,
practice and principles.
The term ADR encompasses a wide range of processes broadly falling within 1-002
two categories, detemlined by the way in which the dispute is resolved:
adjudicative and agreement-based or consensual. In adjudicative procedures,
such as arbitration, a third-party independent reaches a decision (which may be
binding (e.g. arbitration) or may be a reconunendation (e.g. Ombudsperson))
whereas, in agreement-based processes, the parties have the opportunity to reach
an agreed outcome assisted by an impartial third party.
The range of ADR procedures may be viewed as a spectrum of processes, set 1-003
apart from court proceedings, each of which may be utilised to bring resolution to
parties engaged in a dispute, where arbitration sits at one end of the spectrum and

I Albeit that a significant majority of cases settle before they reach the courts.
2 It is widely considered that the address of Pro tess or Frank Sander at the Pound Conference 1976 led
to the mainstreaming of ADR into the dispute resolution landscape in democratic nations.
, Prior to this, the ADR idea was "viewed as nothing more than a hobbyhorse for a few offbeat
scholars"; Harry Davies, "Alternative Dispute Resolution; Panacea or Anathema" (1985- \986) 99
Harvard Law Review 668.
 ANALYSING ADR "AI TtmNATIV[("

mcdi<ltion at the other:1 Moreover, AnI{ procedll1 'S IIII1Y he bll.!J~dcd III diflcrcnl The term "alternative" has attracted criticism. One concern is that it may have 1-007
permutations into hybrid procosses tHi101~d til ll1..:et the needs ul ench JntitVldLltl l negative social capital since its usc in other contexts denotes separation from
dj~Jlulc ullcl situution, such us M..:<f-Arb Hml Arh-Med. wh 're partlcs agree to tlse mainstrcam, accepted social activities and norms (such as alternative medicine,
' t'Icalory mc tlod
an uU~ll( 1
If' 'IUI"'clnelll
'" eo'''
I~- nut l'l~aclJCd IJU'ollgh •all agrccmllnt-bascd alternativc lifcstyle, and so on). Indeed, in recognition of this, and in view of
-I' 11UY ('1>( LO liS' un agorecll1 nt-based process for some asp(!ctti uml changing public perceptions, "alternative" medical treatments may now be
process, OJ' , .ey I -: ' . . ., . • , .. , , ~ ,
ro:sci c others for udJudi ',\llOn, MCUI<lIIOn - hilS over rc(.el~t y~.lr. bee lfne the rcferred to as "complementary".
most WIdely used l1on-m.ljudicatory PHl(,CS~ whtlst arbltrallon e lall.-;es lin: A linked concern is that the usc of "alternative" in relation to mediation and J~OOX

rreqllcolly rOllnd in commercial Ul~d construction cOllt~uclS , It should b' l1okd , othcr ADR processes, may suggest that these are subservient to litigation. This
however. Ihut s incc II significant tlll11 of the processes IS to ensure greater party view pertains to the idea that ADR provides "second class justice", which notion
conlr<>1 (lr the type of rroccss, n llcs for resoilition, Ihird-p<trty intervention in their may be predicated on the notion that ADR has been viewed as a way of dealing
dispute, and so on, individual processes may valY considerably. with cases that are less deserving of court resources and, hence, public money.!O
1~004 However, ADR has not been universally adopted for valying reasons. Thus the usc of the tenn "alternative" dispute resolution is not unproblematic.
Individuals may lack sufficient knowledge about the range of possible Following this line of thought, commentators and dispute resolution 1~009

approaches to dispute resolution 6 ; legal advisors and courts may promote ADR organisations have adopted other terminology and acronyms. Internationally, one
but individuals may be committed to comt-based resolution to vindicate their of the most popular appears to be "appropriate dispute resolution".! I Commenta-
rights, to seek greater recompense or to gain publicity7; and, additionally, a case tors appear to agree that the use of the word "appropriate" represents accurately
may be considered unsuitable for mediation (e.g. where a legal precedent is the dispute resolution landscape since it encompasses a full range of possible DR
required or where an individual has been bullied or abused by another party).H options, including mediation, ombudspersons and litigation. 12
However, even in such cases, the use of ADR may be advocated. 9 Others, such as CEDR,13 prefer to use the term "effective". This has the merit l~OlO

1~005 In order to understand the complexities of ADR processes, it is instructive to of providing positive imagelY but does not have widespread recognition. Outside
analyse each of the three elements of ADR: "alternative", "dispute" and of CEDR, its use may be confusing since the acronym EDR may be used to refer
"resolution". In doing so, it is important to bear in mind that ADR is a generic variously to "effective", "employment", "environmental", "extra-judicial" and
and broad concept, covering a wide range of activities and embracing significant "electronic" dispute resolution.
differences of philosophy, practice and approach in the dispute resolution field. Since the tum of the century the civil justice system has encouraged l~Ol1

"proportionate" dispute resolution (PDR)14 and this tenninology is increasingly

used. 15 Again, this conveys valid imagery in ternlS of reflecting that processes can
"ALTERNATIVE" be designed and used that are balanced, fair and in proportion to the nature of the
dispute.
1~006 There is no universally accepted phraseology for dispute resolution procedures. However, these terms are each sufficiently broad to encompass court litigation 1~012

within the range of possible procedures. Hence, in the context of this work, the
term "alternative" is adopted to differentiate between judicial decision-making in
fonnal court proceedings and other fonns of dispute resolution conducted and/or
4 Dispute resolution procedures may be formulated to include litigation, where court-based
adjudication sits at one end of the spectrum and mediation at the other. Susskind prefers to categorise facilitated by independent third parties (irrespective of whether such processes
dispute resolution into two groups: those which are attached to the court or engage the supervision of
the court and those which are not. [n this formulation mediation may be sited on both sides of the
fOl111ulation: L.E. Susskind, "Consensus Building and ADR: Why They are Not the Same Thing" in
M.L. Moffatt & R.C. Bordone, The Handbook of Dispute Resolution (San Francisco: Jossey Bass, 10 For example S.B. Goldberg, E.D. Green and F.E.A. Sander "ADR Problems and Prospects:

2005) pp.358, 359-360. Looking to the Future" (1986) 69 Judicatlll"e 291. 293.
5 In certain jurisdictions, mediation may be tenned as "conciliation" whereas in other contexts " Examples include: CADRE (Center for Appropriate Dispute Resolution) which, in the context of
conciliation has a different meaning. See Ch.2, para.2-036 and fn.22 and Ch.8, paras 8-012 to 8-019, special education in the US, encourages the use of mediation and other facilitative processes in
and in the employment context, Ch.13, paras J 3-008 to 13-013. disputes between parents and schools; and the Appropriate Dispute Resolution Centre in Pretoria,
6 I. Pereira, C. Perry, H. Greevy and H. Shrimpton, "The Varying Paths to Justice" (Ipsos Mori South Africa.
Research Institute, Ministly of Justice Analytical Research Series 2015). 12 See C. Menkel-Meadow, "The History and Development of 'A'DR" (Volkerrechtsblog 20 July

7 See e.g. S. Shipman, "Court Approaches to ADR" (2006) C.J.Q. 181, 192; and see J. Wade, "Don't 2016), at: http://voelkerrechlsblog. org/the-history-and-developmellt-ofa-dr-alternativeappropriate-
Waste My Time on Negotiation and Mediation: This Dispute Needs a Judge", Conflict Resolution dispute-resolution/ [accessed March 2018].
Quarterly, Vo1.18, Issue 3, 259~280, Spring, 2001; and Ch.5 ADR & the Courts. 13 Centre for Effective Dispute Resolution, London, UK, which describes itself as the "largest

H See Ch.16, para.16-1 J 8 for a list of some circumstances where mediation would be inappropriate. contlict management and resolution consultancy in the world", at: https://wlVw cedI' com/aboIiU/s/
Y For example, National Human Rights Institutions may make use of ADR, such as mediation or [accessed April 2018].
conciliation, to resolve individual complaints of human rights violations: Paris Principles adopted by 14 Civil Procedure Rules 1998 r.I.2(c); Practice Direction Pre-Action Conduct and Protocols paras 4,

the United Nations General Council Resolution 4811 34 1993. See F.E.A. Sander and S.B. Goldberg, 8-10.
"Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure" (1994) 10 15 Ministry of Justice references include: "Housing: Proportionate Dispute Resolution" Cm.7377 Law

Neg. 1. 49,66; or (2005~2006) 7 Cardozo J. Contlict Reso!. 83. Commission No.309 May 2008.

2 3
 ANALYS INU A i m " lllSI'IJlI':"

. '1 'dcr ur ulher limn or courl encouragement). "Ihe r;,d Ihatthe pfailltills make certain claiLlls which, il'disjluted, would be re/i.;rabk
arc conducted pursuant to a COlli 01 " . . I '1' .., I to arbitration and the illct that lhe defendant then docs nothillg-- he docs not admit
"Alternatlve a so tiS JJlguls les these
. " I I' ·t· "1" . I)rocesses frolll convcnllOll,l l )1,lteld
the claim, he merely continues a policy of' masterly inactivily docs nol mean that
negotiaLion. I " there is IlO dispute. There is " dispute until the defellLhinl admits that H SIIIII is due
and payable.".'1)

"DISPUTQ" These decisions give rise to a potential problem. 11 was relatively easy, qllick 1- 017
and inexpensive to isslie proceedings ill the cOllrt for a debt or to obtain SUl1lmary
1- 013 By definition, ADR deals with disp~ltcS. H~wevcI> whilst the terlll generally judgment. lIaving to go Lo arbitratioll, appoint an arbittalor or arbitrators ancl get
denotes disagreement, it can be used III a varIety of contexts. It may be used to an award is likely to be both time-consuming and expensive.
describe debate or academic argument, for example: "this point has been much In Hulki Shipping Corp v Sopex Oils Ud,21 the Court of Appeal again I-OIl!
disputed ". It can be used to represent challenge: "I dispute that". In the context of considered the ambit of the term "dispute", this time under the Arbitration Act
ADR, it may reflect a legal disagreement, such as neighbours who arc "in 1996 provision which concerns when the court must stay proceedings in the
dispute" about the boundaty of their properties. context of arbitration clauses. 22 Under the Arbitration Act 1975 courts could
1- 014 The English courts have, on a number of occasions, considered the ambit and refuse to grant a stay of proceedings where there was "not in fact any dispute
meaning of the word in the context of contractual arbitration clauses. Successive between the parties". However, s.l (b) of the Arbitration Act 1996 sets out a core
Arbitrations Acts have obliged cOUlis to stay proceedings where contracting principle: that "patties should be free to agree how their disputes are resolved".
patties have agreed to refer disputes to arbitration. Hence, in these cases, the Hence, if a dispute exists the comts must grant a stay of proceedings unless
cxercise of the eOUlt's power to stay proceedings has turned on whether there is a satisfied that the arbitration agreement is null and void, inoperative or incapable
dispute. The court decisions have been significant since, if it is decided that no of being perfonned .2 :1 In this case, which has been extensively followed, the
dispute exists, the party who wishes to enforce any aspect of the contract may do Court of Appeal held that, in essence, if a valid arbitration clause exists, the COUlt
so through the courts; but if the COUlt finds that a dispute exists then the specified has vety restricted and limited scope to consider the nature or effect of any
ADR process must be followed. dispute, and should stay any proceedings brought in the COUlts so that the matter
1-015 Under the Arbitration Act 1975,1 7 the comts had resisted attempts to narrow can be dealt with in the agreed forum .
the meaning of the word to apply only where a claim could be resisted on either This principle was applied subsequently in a case in which it was argued that 1-019
the facts or the law. In Hayter v Nelson, IX the parties had contracted to refer any there was no "dispute" between the parties since the defendant admitted liability,
differences that arose under the agreement to arbitration. The court considered agreed the amount of the claim, and acknowledged that payment had not been
that the word "differences" was sufficiently broad to encompass "disputes" and, made. The question was whether failure to make payment admittedly due
therefore, had jurisdiction to exercise its power to stay proceedings under the Act. constituted a "dispute". The judge, Langley J, held that such refusal was a
In doing so, it expressed the view that the ordinary meaning of "disputes" and "dispute" on the basis that if one party required payment and the other refused to
"differences" should be given to these words in arbitration clauses. Hence it must pay, they were in dispute: there was no difference between a refusal to admit a
stay proceedings even in situations where the COUlt would otherwise have granted claim and a refusal to pay it. 24
summary judgment. The comis have interpreted "dispute" in a similar way in the context of 1-020
1-016 In keeping with a wide definition, the courts have held that "dispute" decisions relating to other fOims of ADR. In Tham es Valley Power Ltd v Total
encompasses silence in response to a request for action required under the Gas & Power Ltd,25 the contract provided for expert detennination of any dispute
contract. Hence, in Ellerine Bros Pty Ltd v Klinger,1 9 there was a provision for or disagreement. The judge had to decide whether there was a "dispute or
disputes to be refelTed to arbitration. The defendant failed to account as required disagreement" between the patties, who could not agree as to whether a force
under the agreement but did not assert that a dispute existed until after a writ had majeure notice could be served, a matter which the judge considered was
been issued seeking an accounting and payment. The Court of Appeal held that ill-founded. Hence, having regard to this view and to other factors that militated
"silence does not mean consent" and that: against a stay, he declined to grant a stay. Whilst he considered that the words
"dispute or disagreement" should be accorded their ordinalY meaning (in line
with the arbitration cases), the court's power to order a stay of proceedings in this
16 Negotiation is fundamental to virtually all fOl1ns of agreement-based or consensual ADR case was discretionary.
processes, so an lillderstanding of it and its theories and principles is essential to undertaking and
managing these processes eftectively. See ChA Negotiation. 21> Ellerille Bros Ply Ltd v Klingel' [1982] 1 W.L.R. 1375 CA (Civ Div), per Templeman LJ at 1383.
17 The Arbitration Act 1975 s.1 provides that the court "shall make an order staying the proceedings" 21 [1998]1 W.L.R.726;[1998] I Lloyd's Rep 465 CA(Civ Div).
unless it is "satisfied that the arbitration agreement is null and void, inoperative or incapable ofbeillg 21 Arbitration Act J 996 5.9.
performed or that there is in fact 1101 allY displlle between the parties in regard to the matter agreed to 2) Arbitration Act 1996 5.9.
be reterred". 24 E~fill Shipping (India) Ltd MlIIllbai v Tolalli Shipping Co Ltd Mllmbai [2006] EWJ-JC 1090
I. [1990] 2 Lloyd's Rep. 265; The Times, 29 March 1990 QBD. (Comm).
10 [1982] I W.L.R. 1375 CA (Civ Div). 25 [2005] EWI-IC 2208; [2006] J Lloyd's Rep. 441.

4 5
 ANALYSINU AJ)I{ "[)ISPlJIF'

Thc$~ cu~cs suggest 'uI'~fur 1 •'1 g-'II"rolls

th~ll t hI.: C(lur1/o .. ~ . IIlterprctulion uf IIw
. individuals conccrned""; or "a disagreement through which the patties involved
1-021
I
ward Wlcrc 'r "'"
po rt les Imv e ....~ u v
n I" r..:I(:1" Ihcir
•
di~11utc~
. .
to ADR.
".
even
, .. "
when IhlS perccive a threat to tbeir needs, interests or concerns".12
nlay Icau.f I 0 . I ' f cxp ' 11SC
g[C~1 I.: ••
'lilt! delay l o!' (hI.! parties. 1, his acculds. \\ Itb
•
the LJncolltained conflict may manifest itself in verbal and behavioural disagree- 1- 024
AI-bllrati II Act 1996. th<lt PUflI S should be tree to
pn,nclp
. 1e, 1 - t·-'
fie op \;;u
I)y Ii'"
.~ • ' . • ,
lllCnts and ultimately in some cases in violencc; and in the case of international
C1loose tl ]e 1' 1' prcfem;:d m Ihod .01 c.ilspute
.
resolution. However. Ihls apPlo<lCh mclY
. • .. •.. f' ., J' . 26
connict, war. However, conflict is an integral part of human behaviour, and may
be lil11ilctl wher..: H court IhlS ulSCI'CllOn 10 lelu to g lttol a slny 0 pmcccc I1lgs hc utilised positively to bring about change." Decision-making frequently
involves an element of conflict; exchanges of ideas involve contlict; the
Distinguishing dispute and conflict: the paradox27 democratic process is built on the basis of the normalcy of a contlict of ideas and
interests.
1-022 Whilst the courts have adopted a broad intcrpretation of "dispute" to include any Various management writers point out that contlict is a fact of life in
difference between paliies, whether or not articulated, it is important in the organisations, though destructive handling of it does not need to be. 14 Other
context of ADR to distinguish betwecn disputes and conflict. Generally, writers make similar points on a more general basis. 35
"conflict" is used to denote a serious dispute or protracted and complex Hence, conflict may have a healthy and positive function. It is when it 1-025
disagreement whereas disputes are disagreements which are amenable to becomcs dysfunctional that problems arise. When parties or groups become
resolution through third-party decision or party agreement (which may be irreconcilable and the natural mechanisms for managing and resolving cont1ict,
facilitated). However, this distinction is not straightfOlward since the terms may for example by discussion and negotiation, are inadequate or go awry, then the
be used interchangeably and, additionally, may be paradoxical: on the one hand, conflict may become potentially damaging and other processes may be needed.
"conflict" may be viewed as a generic term, with "dispute" as a class or kind of If conflict is more generalised as a clash of opposed principles or a 1-026
conflict which manifests itself in distinct, justiciable issues. On the other hand, manifestation of differences and may include differing viewpoints and attitudes,
disputes are likely to involve some element of cont1ict within them, for example, disputes-as will be seen tl-om the above outline of case law-are much more
where parties are in high conflict about the subject-matter of a dispute. Hence specific and involve disagreement over issues capable of resolution by
disputes may be found within conflicts, and conflicts may be found within negotiation, mediation or third-party adjudication. 36
disputes. On this definition, the nature of a practitioner'S approach is likely to be 1-027
1-023 The essence of conflict is often associated with something negative and different for a dispute that can be resolved than for an inter-personal or
destructive. 2x It is defined as "a state of opposition or hostilities", "a fight or
struggle" or "the clashing of opposed principles".29 It has also been variously
described as "a manifestation of differences working against one another"30;
"disagreements between two or more parties which cause tension for the .11 Yibeke Yindel0v, Mediation: a non-model (Copenhagen: DJC}F Publislling, 2007), p.42.
32 See Harry Webne-Behnnan, The Practice of' Facilitation: Managing Group Process and Solving
Problems (New York: Quorum Books, 1998).
33 Andrew Floyer Acland, A Sudden Outbreak of Common Sense: Managing COIlf/ict Through

Mediation (London: Random House Business Books, 1990), p.69 suggests that "the purpose of
contlict is related to change ... all conflict is about the attempt to achieve or resist change". In Thomas
26 The issue of what amounts to a dispute also attracted a high incidence of litigation in the context of F. Crum and John Denver, The Magic of COf!/lict: Tuming a lif'e ~/ Work into a Work ~f' Art
adjudication under the Housing Grants, Construction and Regeneration Act 1996. Under that Act (Touchstone, New York 1987), Thomas F. Crum says that conflict is "the interference patterns of
disputes are refen-ed to an adjudicator lor interim decision pending tinal resolution of disputes energies caused by dii1erences, that provides the motivation and opportunity for change". Conflict, he
through agreement or arbitration. See: I. Ndekugri and V. Russell "Disputing the existence of a says, is not a contest, and resolving conllict is rarely about who is right, but about the
dispute as a strategy for avoiding construction adjudication" (2006) 13(4) Engineering, Constmction acknowledgment and appreciation of diflerences.
and Architectural Management 380; A. Reid & R.C.T. Ellis "Common sense applied to the definition 34 For example, David Lax and James Sebenius, The Manager as Negotiator: Bargaining .lor
of a dispute" (2007) 25(3/4) Stl'llctural Survey 239. In the context of housing disputes, subsequent Co-operation and Competitive Gain (New York: The Free Press, 1986); and D. M. Kolb and J. M.
recommendations arising from a Law Commission consultation suggest that in the context of housing Bartunek, Hidden Conflict in Organisations (USA: Sage Publications, 1992). D. Whetten, K.
disputes greater use should be make of dispute resolution procedures such as mediation and Cameron and M. Woods in Effective Conflict Management, (Pearson Education, 1996) say that
ombudspersons: "Housing: Proportionate Dispute Resolution" Cm.7377 Law Commission No.309 "contlict is the lire-blood of vibrant, progressive, stilllulating organisations. It sparks creativity,
May 2008. stimulates innovation and encourages personal improvement."
27 Such disputes may revolve around intensely emotional issues, such as child custody, employment .15 Susan Stewart says that "the evidence of history suggests that conflict is more characteristic of
disputes, where parties have strong emotional attachment to the outcome. See, for example: CA. human behaviour than is harmony." COI!f/ict Resolution: A Foundation Guide (Hampshire: Waterside
Coates et al "Parenting Coordination tor High Conflict Families" (2003) 41 Family Court Review I. Press, 1998), p.9. In Mediating Dangerouslv: The Frollliers of' Conflict Resolution (San Francisco:
2" See Bernard Mayer, The Dynamics OfCOl!f/ict: A Guide to Engagement and Intervention, 2nd edn Jossey-Bass, 2001), Kenneth Cloke says that conflicts contain information "essential tor our growth,
(San Francisco: Jossey-Bass, 2012), pp. I-33, for his views on the sources of conflict. learning, intimacy and change."
29 Oxford English Dictionary Online (at: httpsllen.ox/orddictionaries.comlde/initionicOl!f/ict 36 In a family context-but the principle Illay be extended to other fields--Marian Roberts describes
[accessed 10 May 2018]). disputes as "specific, identitiable issues which divide parties", distinguishable trom the "wider
30 John Crawley, Constmctive COlIf/ict Management: Managing to Make a Difference (London: conflict" associated with family breakdown: see Mediation in Family Disputes, 3rd edn (Hampshire:
Nicholas Brealey Publishing, 1992/1995), pp.1 0111. Ashgate Publishing, 2008).

6 7
 "'RFSOI.IJTION"
ANALYSING ADR
••
organisatIOnal
• .'
conflIct or an endullIlg
T tr ,t (on~ thaI is deep
con Ie
and long-standing
. (II'ft'ercn t k'111(IS 0 t·
Why only disputes anyway'?
, . ' ) tl ' t ay reclum;
and not amenable to immedlUte resolutlOll \,\ 111
Although the primary use of ADR is in relation to disputcs, and perhaps conflict, l--03l
intervention. 3 7
the process of engaging a third-party neutral to facilitate or arbitrate an agreed
outcome docs not have to be limited only to addressing issues where paliies are in
Submerged issues in disputes
dispute. Concepts such as "deal mediation", for example, arc velY properly pari
. nu I lInCO I11111011ly ·tn "iceberg" factor in disputes, in . which only pmi is of the ADR umbrella. This is a form of mediation in which, rather than working
1-0211 Th ere IS with a dispute, a mediator assists parties who arc setting lip a dcal to do so,
. 't' II lr nl but when: much lurks below the surface. ThiS may for example
1111 la y appt c , . . .
be the case wi lll regard I disagreements JIlvolvmg pmtles who have or had some particularly in relation to complex negotiations, and to overcome blockagcs. 3H
form of relationship with one another, which may have degenerated over a period Similarly, project mcdiation is a process that helps construction industty teams to
of time. So, for example, in a partnership dispute the issue that has sUlfaced may communicate more effectively, work more collaboratively and avoid issues
not necessarily be the whole or the real problem, which may be more complex, turning into conflictual disputes by addressing them at an early stage. The
involving underlying differences. There may be hidden agendas in other business machinery for project mediation is generally built into the contract, and indeed it
or personal relationships, of which the parties themselves may not necessarily be may be included in any procurement documents.:19
fully conscious. However, this is by no means limited to personal or relationship
disputes. Hidden agendas, emotional factors, personality differences, issues of
principle, perceptions of fairness and justice, strategic considerations and "RESOLUTION"
symbolic significance can be-and cOlillnonly are-underlying factors in all
kinds of disagreements that may affect the level of conflict and disguise the actual ADR by definition refers to the "resolution" of disputes, which in the context of 1-032
issues in dispute. These issues may make dispute resolution a more complex task agreement-based forms of ADR may be understood to equate with settlement
than may initially be apparent. and, for adjudicative fOlms, relates to third-party decision-making to resolve the
1-029 The existence of submerged issues further blurs the distinction between dispute. However, since ADR may be used at varying stages of a dispute, at
conflict and dispute, since the underlying issues may well aggravate the conflict times, dispute management may be appropriate rather than resolution. Addition-
between the parties but may not be directly relevant to the actual dispute. By way ally, the palties and/or the facilitator may have broader aspirations for the ADR
of example, brothers may be in dispute about their respective rights to the process and may, for example, adopt a "transformative" approach to dealing with
allocation of new shares in a family business, and they may enter mediation to try disputes.4o Hence the concept of resolution needs to be further considered.
to resolve this. There may however be deep underlying issues and resentments If there is a distinction between conflict and dispute, however interrelated 1-033
going back to childhood about how the one has always treated the other, feelings these concepts may be, then there are surely differences in the way conflicts and
about how their parents may have differentiated between them, and how one is disputes can be addressed. Additionally since the term ADR encompasses a broad
perceived as having taken advantage of family members' goodwill and many range of processes, options include third-party decision-making, settlement,
other personal issues and antagonisms. The main issue of the shares is the prevention, management, transformation, analysis and intervention.
presenting dispute, but it is just one manifestation of underlying conflict between
them. It is important for the ADR facilitator to be clear whether his role is to help Dispute resolution or settlement?
them resolve the dispute about the shares or to help them resolve the deeper
underlying conflict between them. The issue is whether the facilitator's role in In the context of agreement-based ADR, successful "resolution" of the dispute is 1-034
this matter is one of dispute resolution, or of conflict resolution. This is not a likely to result in an agreement between the parties to settle the issues under
rhetorical question: it addresses the facilitator's fundamental role and function consideration and will, therefore, comprise processes that facilitate settlement.
and has to be agreed between the parties at the outset. However, settlement of the issues in the presenting dispute may leave 1-035
1-030 The intensity of the conflict level in a dispute can range between velY low (as underlying conflict unresolved. Hence a broader understanding of the term
for example where there are no personality, emotional or other submerged issues, "resolution" may suggest that it should be used only when all issues, presenting
and the parties have a simple, basic disagreement which they want to resolve) and
very high (as where there are serious personality problems coupled with intense
emotional factors and other submerged issues, and the dispute carries significant
outcome implications for the parties). 3" See L. Michael Hager and Robert Pritchard "Deal Mediation : How ADR Techniques Can Help
Achieve Du rable Agreements in the Global Markets" (1999) ICSID Foreign Investm ent Law Journal
I and Scott R. Peppet, "Contract Fonnation in Imperfect Markets: Should We Use Mediators in
Deals?" (2004) 19 Ohio S.L.J.
3" See for example Danny McFadden "Big Projects, Big Disputes- Bring in the Medi ators" at

37 See the next section under " Resolution" for the different approaches to conflict and dispute and for h"ps:llwlVw.eedr.eomlbloglbig-projeets-big-displltes-b,·ing-in-the-mediators/.
addressing enduring conflicts. 40 See "Dispute resolution: transfonnation" below and Chs 3 and 9.

8 9
 "RLSOLU'i'ION"
ANALYSING ADR

· I '" Ivc(j ·tnt! til'll lhe term "sc(lk.mcllt" is marc Pmlies may, ('or example, wish to have a neutral person facilitate certain 1040
ano lin dcr IylIlg, mvc b'eCIl ICSO " , , ' ..,. ' . ,
aspects of a dispute, leaving resolution to be dealt with in a different way or
. I
appropnutc to w lCI C pat ICS," ·t· . 1"lve re'lehed agrcclllt:Jlt Oil the Issues of the
<
forum or at a different time; or they may want the neutral to help manage aspects
presenting disputc, , . >, ' fl' d I'· 'If' of an ongoing process. One form of Early Neutral Evaluation (ENE) is an
. t II)c ess l C • 'II' til" thsll llcllUn b..:twccII con Ict an ( lspUk.
"CI\;, a
1- 036 T Ili S goc~ ...' . .
' \' . 'mll ' ''''' 1 to I,ell' p'lrlics I'Ci\ch agn.:ulllcnt to seW\! a c.lIsplilc that. bas example of such a role, where the evaluator works alongside the parties and their
pl~ICU loner 15 n.:,., " .. ~ ,. "", "
IlO other or lInoorlying ·onllicl. Ihen ..~~ttloJllent and reso llilton \l au ld have lawyers in guiding them through various stages of litigation, expressing informal
the same Illcillling, f r howcvcr the practitIOner IS rcqlll.rcd Lo I.ldp pm1H!S r(!.',olvc a and non-binding views on process andlor the merits and being available as
stul.l.: or conl1iel thai exists between Ihem, and thl! 01. pute IS ll1erdy onl! or lhe needed to smooth the path of the litigation and help create conditions in which
ways that the connict manifests itself, then settlement of the dispute docs not of settlement can bc efrectively considered. 43
itself necessarily resolvc the wider cont1ict: here "settlement" may not be the Hence the word "resolution" in ADR should not be viewed in too rigid or 1-041
same as "resolution" at all. On this principle, if any dispute has underlying limiting a way, as an ADR practitioner's role may quite properly comprise
connict that is not resolved by a settlement, then even if the practitioner is only something that enhances the resolution process but does not itself engage with the
required to deal with the presenting dispute, the term "resolution" would arguably actual resolution as such of the dispute.
be inappropriate.
]-037 This raises the question as to what the ADR practitioner's proper role is: Dispute resolution: transformation
settlement of the presenting dispute or resolution of the underlying conflict, or
both, or something else? The answer lies in the contract that the patties and the In the context of agreement-based processes, there are primarily two ways of 1-042
practitioner enter into with one another, and the informed decision that parties viewing transformation in dispute resolution. The first is the transformation of a
make as to their requirements. It is obvious that if patties choose mediation, it dispute from an adversarial process into a problem-solving exercise and from a
would not be right to provide psychotherapy, arbitration or any other process that rights-based approach into one that includes an interest-based approach, and the
is not mediation. Similarly, if patties seek help in resolving (and the word is used reframing of issues so that they can be effectively addressed and resolved. This
advisedly here) a particular dispute or issue, and they contract for that, then if the transformation of the dispute is what agreement-based ADR may aspire to
dispute is settled, the practitioner'S contract is fulfilled even if an underlying achieve; but the usage of the term "transformation" is not usual in this context.
conflict remains. If the parties wish the practitioner to help them with their More commonly, however, the term refers to the ideological concept of 1-043
underlying conflict, that would be a different contract-a proper one to address if transformative mediation. 44 Underpil1l1ing this approach are the twin concepts of
so required. "empowerment" and "recognition" (rather than problem-solving): the aspiration
1-038 However, in fact, working towards the settlement of a dispute may well is that the mediation process has the potential not only to settle disputes but to
provide the opportunity for addressing underlying conflict, and it is not transfonn people's lives by increasing their efficacy within cont1ict and helping
uncommon that reconciliation may take place as the process unfolds. Practition- them to gain greater acceptance of the person with whom they are in dispute.
ers would generally regard this as positive and desirable; but the explicit (and Hence, it is not the dispute that is transfOlmed but the person.
necessarily implicit) tenns of the contract would have to decide whether this was For a mediator who adheres to a transformative approach, even if the matter is 1-044
the primary objective of the process, or an added bonus to an otherwise fulfilled not settled and even if the parties remain unreconciled with one another,
contract. 41 mediation is successful if it brings about party recognition and empowennent:
settlement is a bonus if it occurS. 45
Dispute management or other intervention While transfonnative mediation has its supporters, especially but not only in 1-045
inter-personal issues, the process and matters for resolution are set by the contract
1-039 Not all dispute intervention necessarily requires an ADR practitioner to help agreed between the patties and the third-party facilitator. If the parties make an
parties to resolve a dispute. Indeed, Mayer regards the terminology of "dispute informed decision at the outset of the process that they seek empowerment and
resolution" as limiting, since it implies that resolution is necessarily the recognition irrespective as to whether or not the dispute is settled, then
practitioner's objective, whereas there are times and situations where resolution is transformative mediation would be the right approach. If however their primary
neither possible nor appropriate, yet where the neutral's role may be relevant and aspiration is to settle their dispute as far as possible, and if they are not seeking
helpfu1. 42 Certainly, there are other roles that may assist parties which do not
involve the practitioner in achievement of actual resolution or settlement. 43 As to Early Neutral Evaluation, see Ch.19. Evaluation as a limn of dispute management, which
takes different shapes, clearly has potential to be further developed; and the neutral's role could in
some circumstances be converted to that of mediator at some stage if required.
44 For the origins and discussion of this ideology see: R.A . Baruch Bush and J.P. Folger, The Promise

4' The issue ofreconcilialion and healing as part of an ADR process is addressed in Ch.3, paras 3-025 of Mediation: the Tmns/orlllative Approach to Conflict (Jossey-Bass San Francisco 1994). See Chs 3
to 3-029. See also "transformation" below. and 9 for further discussion about transfonnative mediation.
42 Bernard Mayer, Stayil/g with COI!flict-A Strategic ApplVClch to Ol/goil/g Displltes (San Francisco: 45 Foreword to Baruch Bush and Folger, The Pmmise of Mediation' The Transformative Approach 10

Jossey-Bass, 2009). COI/.fliet (1994), by the consulting editor, Jetfrey Z. Rubin.

10 11
 ANALYSING AIJR

Conllict prcvcntion Jllay l)L~ dilfcrelll, ,ilso, i'rom cOli/lie/ /mlls/iml/o/iol/, ill I 11511
. (Il't
trans t'ormatIOn a )CI (·1 HI til'
ICY JIII'gllt " l'I"lsked
. , be willillg
. to accept it as a bonus),
then the facilitator's task is to help them settle t.he (lis pu tc. ,. which the aim is to transform conflict into a peaccful oulcollle, particlilmly but

1-046
It is arguable that parties Illay not necessanly <l!)precJate the tn~llstorlllatlve not Ilcccss<lrily at the societal, national and international IcveL·I') This apprO<lch
possibilitics ofthc mcdiation process an I may, therefore, a~ree to an Issues-based ('ocuses on the context ,lI1d rel<ltionship between thc actors and looks for ways to
approach . Conver 'ely, p t1l1 ics eh o~ing th~ transformatl~e appro<~ch. need to bring abollt collective healing, reconci liatioll, restoration and building of long
a pprec iut~ luut s ttlcllIcnt orthe ~Isput? I.S not thc Imm,lry, obJcctlvc. ~he term goals 50
parti cular idcology Qr approach ot . th~ tac.lht~ltor, and/?l~ profeSSIOnal advice, Another way or addressing conflict is through COli/lief lI/(I/wgC/JI£'l/t, which is 1-()51
() ffercd \0 the parties. is likcly to be IOIl\lentJaI 111 detel'll11nmg the parameters of relevant where it is not practicable to seek to resolve conflict immediately, but
the process and its resolution. It is important that, in any casc, the particular where management of it over time may be appropriate. This may apply, for
process, its objectives and possibilities, are f\llly cxplained in order in order to example, to intractable or endming conflict,51 which is deadlocked and not
ensure that parties make informcd choices. amenable to resolution. Such cont1icts may, for example, embody profound
differences of values that may not be able to be reconciled, such as the connict
Conflict resolution and other interventions between the pro-abortion and the pro-life lobbies, who may not be able to resolve
their differences, but who may need to be able to live together in a common
1-047 As indicated previously, conflict resolution is not necessarily the same as dispute society; or the cont1ict between parents who have fundamentally different views
resolution. A wide range of practitioners from all walks of life may specialise in about bringing up their children but who need to find a way to co-exist and to
cont1ict resolution. This may include, for example, family therapists andlor function effectively. 52
counsellors in relation to family cont1ict, or management consultants in relation
to organisational conflict. These would not ordinarily be the professionals one
might engage-in those capacities in any event-to help with specific dispute ADR RECONSTITUTED
resolution.
1-048 As the name indicates, cont1ict resolution involves attempts to move people The message from an analysis of the three component parts of ADR is that a strict 1-052
away from their conflict into positive outcomes. This may be achieved through and comprehensive definition for the processes encompassed within the term
the use of a variety of strategies and processes including, for example, mediation, ADR is elusive. The processes may be adjudicative or agreement-based, and
facilitated dialogue, third-party consultation, collaborative problem-solving or though they may be prescribed to an extent by legislation (as under the
consensus-building. 46 Arbitration Acts), they are shaped by the requirements and wishes of the patiies,
1-049 There are fU1iher roles for neutral practitioners who choose to work in the field and may be int1uenccd by the ideologies and approaches of the third-party
of conflict. One possibility is conflict prevention,47 a process that is particularly facilitator. Hence, rather than restrict the scope of ADR processes, we may be
relevant in the international field to prevent disagreements from escalating into t1exible and creative and adopt a wide range of possibilities under its umbrella.
violence and war. This is applicable, also, to conflict in the community,
workplace, families and many other situations. Conflict prevention may involve a
range of strategies such as changing one's communication style, responses and
behaviour; developing systems and rules for anticipating and de-escalating
conflict; and establishing consensus-building approaches. This is not the same as
conjlict avoidance, which espouses strategies, consciously or unconsciously, to
sidestep having to address the conflict. 4H
49 For example, the organisation Search for Common Ground describes itself as working "to
40 For detailed discussion about the theories and practice of conflict resolution and prevention see: O. transform the way the world deals with conllict--away from adversarial approaches and towards
Ramsbotham, T. Woodhouse and H. Miall, COlltempormy COI!/lict Resolillion, 4lh edn (Polity Press, collaborative problem solving (working through) local partners to l1nd culturally appropriate means to
2016); P.T. Coleman, M. Deutsch and E.C. Marcus, The Handbook ofCol?flict Resolution: TheO/yand strengthen societies" capacity to deal with contlicts constructively: to understand the differences and
Practice, 3rd edn (San Francisco: Jossey Bass, 2014);.T. Berkovitch, V. Kremenyuk and l.w. Zartman act on the commonalities."
Sage Handbook o(Conflict Resolution (Sage Publications Ltd, 2008). 50 .Iohn Paul Lederach has written extensively on this subject, for example Preparing for Peace'

47 This term was adopted by UN Secretary-General Dag Hammarskjotd in the 1950s and has gained Conflict Tran~formatiol1 Across Cultllres (New York: Syracuse University Press, 1996); and The
political currency dlle to the humanitarian and other costs involved in international conflict. See, for Moral Imagination: The Art alld SOIlI of Blliiding Peace (USA: Oxford University Press, 2005).
example the United Nations Development Programme on Democratic Governance and Peacebuilding: 51 Mayer prefers to focus on such conflicts as being "enduring", "ongoing" or "long-tenn" rather than

http://www.undp. org!contentlrmdplenlhomeldemocratic-govel'llallce-and-peacebuilding. html. "intractable" because the latter tenn, in his view, suggests that there is no hope of working effectively
4H A lll11nber of professional bodies (including the International Chamber of Commerce, the Royal to deal with the contliet. Bernard Mayer, Staying with CO/!/lict-A Strategic Approach to Ongoing
Institute of Chartered Surveyors and the Royal Institute of British Architects), in the construction and Displltes, see fh.42.
engineering industries have joined together to introduce measures designed to avoid conflict in an 52 A useful overview of "intractable" conflicts, their characleristics and approaches to addressing is

effort to combat the financial costs of disputes. In one example, they have introduced a Contlict provided at: P.T. Coleman, "Intractable Conflict" in P.T. Coleman, M. Deutsch and E.C. Marcus, The
Avoidance Pledge to encoUl'age and equip signatories to work towards the avoidance of contlict. Handbook o/Conflict Resolution: TheO/y and Practice p.708·---see fn.46.

12 l3
 CHAPTER 2

An Overview of the ADR Landscape

INTRODUCTION

Third-party facilitation of disputes has gone on since people first established 2-001
communities, in the earliest societies around the world. I
In its present manifestation, ADR has assumed a range of forms and processes. 2-002
Over the last two or three decades, there have been a number of developments:

Mediation has become the predominant non-adjudicatory process in

England and Wales and has to a greater or lesser extent been integrated into
the dispute resolution mainstream. 2 In the early days of ADR, there was a
sense that dispute resolution could be creative and flexible, combining
different elements in various permutations to create a wide range of hybrid,
bespoke processes to be adapted to the needs of each individual situation
and dispute.
Whereas arbitration is regulated by statute in the UK and elsewhere,
mediation does not have statutory authority; but various fOlTIlS of regulation
are in place or being developed.) Standard-setting bodies have been
established that provide directly or indirectly for mediator accreditation and
practice in the civil-commercial, family and other fields.
Mediation organisations and groups have been established internationally,
nationally and regionally, dealing with civil, commercial, workplace,
family, community and a wide range of other issues. Many also offer
training and accreditation of mediators. These stand alongside arbitration

I S. Roberts in Order and Dispute: An Introduction 10 Legal AlIlhropology (Hannondsworth: Penguin

Books, 1979) traces the way that simpler, non-State societies organised their systems for maintaining
order and resolving disputes using a range of strategies including informal mediation and the use of
neutral umpires. And Derek Roebuck has challenged "the assumption that mediation~even as we
now know it and even as cOUl1-ordered--is a modern invention of lawyers when it is the most natural
form of dispute resolution in the world". See Derek Roebuck's chapter: "The myth of modern
mediation" in Disputes and Differences: Comparisons ill L{m~ Language and History (Oxford: Holo
Books, The Arbitration Press, 20 IO)~originally appearing in (2007) 73 Arbitration 105.
o This is certainly the case with family mediation where there is now a requirement under the
provisions of the Children and Families Act 2014, s.l 0 of which requires a person to attend a family
mediation infonnation and assessment meeting before making a relevant family application. Whilst
there is no equivalent statutory provision for general civil matters, threaded through the CPR are
examples of efforts to encourage litigants to pursue ADR and more often than not when pursued, the
process choice is mediation.
3 By way of example the USA have adopted the Uniform Mediation Act 200 I, modified and updated
in 2003.

15
 IN IIWI>LJ( 'TION
AN OVI':RVIL':W 01; TIII ( AJ)R I,AN J)SC/\I' I ':

.InstitutIons,
. . limc, expellsc ami sll'ess I'OLlay, suJ'J'il'iclll sliould he knowll aboul /\[IL!III;llivl'
Illany 0 I'wlll'cll '!lso ' ,
olTcr Illcdialion ,lilt!.
ollu;1
. .
processes. .[vlany
l)ispulL! RCSlllulioll 10 Illake the f~lilurL! 10 <ldllpl iI, ill p<llliclli<1I' whe11 [lublie money
I aw t"Irlns ant I ll'II'I'I'sl"I's'
, clnll1bers have alSll estahlished slx'clal1sl dispute
, v , , '
was involved, il](kf'cnsible."')
resolutiol1 groups. . . ..
!\DR processes have been incorporated Into Judlcutl procedures, court rules
In another public law case involving a damages claim under the Human Rights 2- 1106
and protocols and arc now expected to be considered and wherever
Act, the court decided that the Parliamentary Commissioner and [he Local
practicable used before or alongside litigation. Coul1judglllcnts ,mel rulings
Government Ombudsman were included within the ambil of ADR 1'01' the
periodically refer to or promote ADR processes."
purposes of public law proceedings. 10 The judge expressed the view that:
Many institutions, organisations, commercial bodies and businesses now
offer S0111e form of facilitated dispute resolution process to address
"if there is a legitimate claim for othcr relief, permissioll should if appropriate be
complaints, Claims and disagreements. limited 10 that rdicf and consideratioll givcn to deferring permissioJl for Ihc
The teaching of ADR processes has become widespread in universities and damages claim, adjourning or staying that claim until use has bccn made of ADR,
law schools 5 and research and specialist writing have analysed, informed whether by a reference to II mediator or an ombudsman 01 othcrwise"
and supporled practice. (,
Among the many other contexts for impartial third-party facilitation, the The construction industry has also found creative ways to avoid court 2- 007
role of mediation in helping to resolve international connict, for example in litigation, where the practice of incorporating dispute resolution machinery into
Northern Ireland, should not be overlooked. contracts for major projects is well established. Its use of adjudication is now
underpinned by statute in the UK 'l and the creation of Dispute Boards is
2-003 The value of having a skilled impartial facilitator to assist parties in dispute to increasingly connnon even beyond the constlUction industlY. In these processes,
reach a resolution as an alternative to litigation has been widely recognised; and an adjudicator or a Dispute Board is established with the power to adjudicate (or,
although mediation is the primalY vehicle through which this is done, there are in the case of a Board, alternatively to make non-binding recommendations),
other various ways to do so. See Goldberg and Sander for their views on dispute which in either event become binding if neither palty challenges them within a
resolution process choice. 7 prescribed period, commonly 30 days, by referring them for further detennina-
2-004 For example, a Claims Handling Agreement to administratively coordinate a tion, usually by arbitration. These forms of ADR allow parties to continue work
significant number of coal miners' claims for damages arising from their on the project notwithstanding the existence of the dispute, and provide for
respiratory illnesses was created as a fornl of ADR measure. When reviewed by interim resolution by a person or group with knowledge, skill and understanding
the court, the judge considered it to be "a fair and workable scheme for disposing of the project 12
of many thousands of cases by administrative means". The judge expressed the Although mediation has taken centre stage, the concept of creating hybrid 2-008
view that: ADR processes remains as relevant as ever and should be an essential part of
every dispute practitioner'S repertoire. This may involve combining different
"consistent with the duty of the Court to deal with cases brought before it in ways non-adjudicative processes with one another, or perhaps even just different
which are just and proportionate it should do what it can to encourage parties only models of the same process. 13 Alternatively, it may involve combining a
to litigate what cannot be reasonably disposed of by other means, whether those be consensual process such as mediation with an adjudicatory one, such as
by way of arbitration, mediation, administrative scheme or howsoever".~
arbitration: hence the processes of med-arb and arb-med, or adjouming a
mediation so that parties can jointly obtain a non-binding opinion on a sticking
2-005 In another example, a council had closed down a residential care home for the
issue from an agreed expeli and bring it back to the adjoumed session for
elderly and a number of residents sought a judicial review of the council's
consideration.
decision-making procedures. In appeal proceedings, Lord Woolf took the view
that the applicants should have taken up the council's offer to set up a complaints
review panel, which was perceived as a form of ADR-"steps to resolve the
Y R. (all the application a/Cowl) v Plymollth City COlillcil [200 I] EWCA Civ 1935; [2002] 1 W.L.R .
dispute without the involvement of the comi." Lord Woolf stated: 803 at [1] and [25],
I" PCI' Lord Woolf CJ, in Am!fi'ijel'(1 v SOllthwark LBC [2003] EWCA Civ 1406 at [81]. The role of
"Particularly in the case of such disputes, both sides must by now be acutely lhe Ombudsman in the resolution of disputes is considered in further detail in eh. I 8.
conscious of the contribution alternative dispute resolution could make to resolving " In the UK, the Housing Grants, Construction and Regeneration Act 1996 provided for mandatory
disputes in a manner that both met the needs of the parties and the public, and saved adjudication in the construction and engineering industry,
12 For further detailed discllssion on the process of Displlte Boards in the construction industry, see

4 See Ch.5. Cyril Chern, Chel'll 011 DisplIte Bawds (CRC Press, 2015),
5 Particularly in the USA and Canada and to an extent university law schools in the UK as well. 13 For example, family mediators in the UK ~and elsewhere-have tended to follow a mediation

6 This is the case in the USA, but not nearly to the same extent in the UK. model in which, among other things, parties meet jointly with the mediator throughout the process and
7 Frank E, A. Sander and Stephen B. Goldberg, "Fitting the Forum to the Fuss: A User-Friendly the mediator does not maintain any confidences; whereas in a commercial model, sepal-ale
Guide to Selecting an ADR Procedure" (1994) 10.1 Negotiatioll JOl/I'llal 49-68. confidential meetings are standard. These models have been in a process of careful and appropriate
, Pel' Sir Michael Turner in AB v British Coal Corp [2004] EWHC 1372 at [52] and [109]. Illtegration in family mediation practice,

16 17
 AN OVLmVII~W ()Io' '1'111; AI)R IJ\NDSCAP[': OlHLlNE OF TIII ~ PROCI :SS I·:S

2 001) These ADR processes will be more rully examined ill this book, but rdationship with litigation is, however, sometimes less acknowledged, as some
meanwhile, it may be helpful to have all overview of dispute resolution proponents of consenslial procedures promote the~e over litigation: the stark (~Ict
processes. is that mediation would not be effective in most cases without the backstop or
litigation or some form of adjudication. Mediation ami other ADR proccsses take
place "in the shadow of thc law"I~: if parties cannot resolve their disputc in a
LTTIGATION AND NEGOTIATlON: THE ADR SYMBIOSIS consensual ADR proccss, they arc free to havc it adjudicated, by a COlllt if no
other adjudicatory procedurc is agreed or prcscribed. Without somc slich
2-0lO ADR refers to the alternatives to litigation, so it may bc hclpful, in order to place machincry, any processes that rclicd purely on pcll1ics rcaching agreement would
ADR processes in contcxt, to outline briefly the kcy c1cmcnts of the litigation bc hopclessly deficient in the facc of parties dcclining to agrec, for good reason
process. or not.
Litigation refers, of course, to a civil cOUl1 action brought by a claimant
against a defendant based on legal principles, asse11ing some right or legal
entitlement. Formal procedures for the conduct of litigation may involve a THE SPECTRUM OF PROCESSES FROM CONSENSUAL TO
number of stages induding setting out the details of the dispute (in "pleadings" or ADJUDICATORY
"statements of case"), disclosure of relevant documents ("discovery"), pre-trial
hearings before judicial officers dealing with any preliminary issues and The spectrum of processes with litigation at the one end--adjudication with rigid 2-014
preparing for the eventual trial, perhaps the preliminary exchange of evidence procedures and minimal party control-and negotiation at the other end-
("witness statements") and in some cases the joining of other pa11ies to the action. consensual with flexible procedures and maximum palty decision-making
If the case does not settle, the litigation process is concluded by a trial and a control-is sometimes refen-ed to as the dispute resolution continuum. Betwecn
substantive judgment ("the court order"). 14 the adjudicatOlY and the negotiation ends of this continuum, hybrid ADR
2-011 Litigation is State provided and supported: the COUlts are maintained for processes incorporate elements of negotiation, facilitation and adjudication,
anyone to use, judges and court officials are paid by the State,15 COUlt orders can binding or non-binding, in different petmutations. The greater the individual
generally be appealed to a State-provided higher coU\1, and once final, can be party 's control, power and authority and the more flexible the process, the more
enforced by following procedural rules. In the ADR context, if one sees all consensual they may be regarded; the less their control, power and authority, and
dispute resolution processes as comprising a continuum, with the most rigid, the greater the third-party decision-maker 's power and the more rigid the
adjudicatory processes at one end and the most flexible, consensual processes at procedures, the more adjudicatory they may be viewed.
the other, litigation would comprise the rigid, adjudicatory marker at one end of Of course, individual power, control and authority are not necessarily 2-015
the line. objectives that disputants seek, but simply comprise one way of comparing
2-012 If litigation is at one end of the dispute resolution spectrum, bilateral processes. For many people, retaining power, control and authority are imp0l1ant
negotiation (by parties personally) is at the other end, being the most flexible and and indeed provide a strong rationale for using ADR. For others, they are of little
consensual way of resolving disputes. 16 Negotiation is fundamental to all consequence: they seek an effective resolution of their dispute, through the
consensual ADR processes, and forms an inherent palt of them, but on its own it assertion of their rights, by seeing "justice done" accordingly to the law, rather
is not generally regarded as an ADR process: the general view is that consensual than a desire that their dispute be merely resolved efficiently and/or effectively.
ADR provides some additional process that enhances or supports negotiation,
most usually some form of impartial third-party facilitation.17
2-013 ADR has a symbiotic relationship with litigation and negotiation, in that it OUTLINE OF THE PROCESSES
depends on both for its vital functions, certainly as far as any consensual
processes are concerned. Self-evidently the facilitated negotiation processes that It should be noted that these processes will be considered in more detail 2-016
comprise ADR could not exist in the absence of negotiation. ADR's synergic elsewhere in this book. But by way of brief overview, the following summarises
each process, with particular referencc to the issue of third-party authority and
14 In England and Wales the Civil Procedure Rules which came into force on 26 April 1999, replaced control versus patty control and the rigidity or flexibility of process. 19 The role of
the Rules of the Supreme Court, and provide procedural guidance for conducting litigation in th e the law in all of these processes is important as it is in itself an arbiter between
Court of Appeal. High Court and County Court for all ci vil claims. the parties and acts as a constraint on the third-party neutral.
15 Though parties may be required to pay court fees lor various procedures.
16 Negotiation is furth er dea lt with at Ch.4 .

17 A view is occasi o nally heard that bi lateral negotiation without any supp lementary facilitation is

itself a form of ADR. Given the general and flexible nature of ADR, there is no detinitive or purist IX See R. H. Mnookin and L. Kornhauser "Bargaining in th e Sh adow of the Law: The Case of

view on this, nor indeed is there any need for one. Because of its inherent role in consensual dispute Divorce" (1979) 88 Yale. L. J. 950.
resolution, this work gives attention to negotiation as a separate process and it really does not matter 10 See L. StetTek and H. Unberath, Regulating Dispute Resolution: ADR and Access to Justice at th e

whether or not it is defined formally as ADR . Crossroad (Oxtord: H:ut 2014), for more detailed accounts of these processes.

18 19
 AN OVERVII:W (W TilE ADR LANI)SCAI'L OIJTLlNI·: 01' 1111': 1)1{()(,I~SSI~S

Litigation

Thc ncutral is a judge, master or other onlcial appointed by the ( 'ourl to make a 2- 017
Litigation binding determination, and in some jurisdictions, also a jUlY.
Private judging Parties have least control. Third-party neutral has most power and makes
binding determinations on proccdurc and substancc. Procedural rules arc strictly
AI\lIIinistratiw or statutory triuunals
prescribed ..The parties do however retain thc choice to commence litigation or
Arhitra tion respond to It.
Expert determination
Private judging
Adjudication
Dispute Board Where this procedure has been adopted, the Court refers the case to a referee 2-011!
Court-annexed arbitration privately chosen by the parties to decide some or all of the issues, or to establish
any facts.
Ombudsman Similar to litigation, but parties can choose (and must pay for) the neutral and
Arb-med; med-arb can agree to simplify and speed up procedures.
Evaluation (early neutral evaluation)
Administrative or statutory tribunals
Neutral fact-finding expert
Mini-trial (Executivr Tribnnal) Binding adjudication based on statutory requirements, stlch as establishing rent 2-019
levels, compensation awards or social security benefits through tribunals and
Negotiation (through representatives)
appeal tribunals.
Collaborative practice Procedures tend to be more infomlal.
Mediation (involving evaluative elrment)
Arbitration
Mediation (purely facilitativr)
Negotiation (by parties personally) A process, in England and Wales and elsewhere regulated by statute,20 in which a 2-{)20
neutral, privately chosen by the disputants or by a body agreed by them, makes a
Consensual: binding determination. Procedural rules may be ad hoc or set by arbitral
organisation. Various sub-categories of arbitration have been developed.
Similar to litigation, but parties can agree choice of arbitrator, choice of legal
rules and/or norms which should form the basis for the judgment and the
procedure can be tailored to meet their needs. The arbitrator makes a binding,
enforceable award.

Court-annexed arbitration

Available in some jurisdictions: the arbitration is initially non-binding, but may 2-021
become binding if neither party appeals. In other jurisdictions, arbitration through
the court is inmlediately binding. Where the award is not initially binding but
may become so, this is similar to the principles of adjudication. Where it is
binding right away, it is the same as arbitration.

211 The Arbitration Act 1996.

20 21
 AN OVERVIl': W OF Till ; AD\{ LANI)SC /\I'I ; mrt LlNI; 01 1'111 ': I'\WCLSSLS

Expert determination IVIed-Arb

) ~. . tIll "xl)Clt who is not all arbitrator and is not subject to the 1996 The impartial third-party neutral acts as mcdiator, and if' thc partics callilot agree, 2 027
2-022 I at des appolll < v. . , ' . . . . .

Arbit."ltion Act to consider isslics and makc a bllldl11g decIsIon or appraIsal becomes all <trbitrator to make a binding deknninatiol1. There al"\: variatiol1s
(whic~ is not al; arbitral award) without necessarily having
(0 conduct an enquiry giving parties rights to opt out of this process in some versions.
f()J\owing adjudicatory rules. As for mediation duri ng thc first stage; but if parties are bound to the
Proccdures accord with contractual instructions given by parties to the arbitration phasc then the Ilext stage may be viewed as for arbitration. III S0111e
third-party expert. vcrsions different people may act in each capacity.

Adjudication Evaluation/Early neutral evaluation (ENE)

2-023 Mainly used in construction and engineering industJy: an informal process in An independent and impartial third-party ncutral chosen by the parties makcs em 2-028
which an adjudicator is appointed to deal with disputes as they arise. cvaluation of the case based on legal norms, usually its merits or some aspcct,
Thc adjudicator has authority to make decisions using informal procedures, which is not binding on the parties but hclps them in their decision-making. An
which are binding unless and until either party challenges them by going to cvaluator may also help paliies narrow and definc issues and promote cffOlis to
arbitration or litigation. settle.
This faBs into the category of non-binding evaluative processes. Power
Dispute Board remains with the parties, but the third-patiy neutJ'al can int1uence them by
evaluating.
2-024 Set up at the stmi of a contract, in the construction industry and increasingly other
industries,21 to deal with disputes as they arise, either by making recommenda- Neutral fact-finding expert
tions or decisions. Very similar to adjudication, but commonly three neutrals on
Board rather than just one. A neutral expeli is appointed by the parties to investigate Issues of fact, 2-029
technicality or law, who produces a repOti, helps towards settlement, and if
Ombudsman agreed, a repOli may be used in COUlt or arbitration. The third-pat1y neutral may
also be given a mediation role.
2-025 An independent and impartial neutral third-party who deals with public If the third-pal1y neutral'8 role is to produce a report that all parties agree in
complaints against maladministration. Also used in certain sectors such as legal advance to accept, this gives the neutral great power. If, more commonly, the
services and insurance. Can investigate, criticise and publicise, and sometimes repOli is non-binding, then it still has authority.
can award compensation.
Degree of party control depends on terms of reference of individual Mini-trial (Executive Tribunal)
ombudsman. Usually power is in the hands of the neutral third-party. Sometimes
a compensation award allows one party freedom to choose acceptance or not. Lawyers for the parties present their cases to a panel comprising the parties and 2-030
an impartial third-pmiy neutral. The neutral helps clarify the issues and evaluate
Arb-Med the merits, and may also mediate after presentations and evaluation. No binding
determination is made, but the process helps the palties evaluate realistically.
2-026 Parties have an arbitration and the arbitrator seals the award, then they mediate In the US, the presentation may be to a mock jury, which makes a mock,
the dispute, aiming to avoid unsealing the award. Another usage is to enter into non-binding determination: the Smnmmy JUly Trial.
and immediately adjourn arbitration, then mediate with a view to having
agreement made a consent award. Negotiation (through representatives)
Unlike med-arb, the arbitration procedure is held first- and the sealed award
is used as a prompt to settlement. The other usage is mediation in all respects, but No third-pal1y neutral is involved. Representatives of each party negotiate with 2-031
with an ability to tum the settlement into an award; and if not settled, the one another. Parties retain power to agree terms.
arbitration leg revives and takes effect. Pmiies retain control over outcome but little control over process and content,
which is in hands of representatives.

21 Notably the financial services industry, shipping, engineering and the oil and gas industries. For
further details see The Dispute Board Federation at hllp:l/www.d~rederatioll.o/"g/ [accessed 10 May
2018].

22 23
 ST/\NJ) /\IW OR HLSI'OKI ' 1)lm(,J:SSI ~ S
AN OVERVll:W OF '1'1 If: AnR I,ANl>SC/\I'I '

Collaborative practice STANDARD OR IHiSPOKIJ PROCI~SSES

2-032 Parties eacll appoint lawyci undcr contract to d~al wi,tll issues by n,egotiation /! is an interesting phenoillenon thai innovativc pmcesses that challenge 2 -UJ7
without contcstcd proceedings ami to stand down ~r01l1 further act~llg 11 contest.cd establishcd procedurcs resist further innovation once they become thc norm.
action bccomes nccessary. Structurcd framcwork lor process that mcludes partlCs Perhaps this is the systemic cquivalent of homeostasis , the principle whereby
in direct negotiations supported by lawyers. This is most cOllll1lonly llsed for Jiving beings and organisms regulate their internal environlllent so as to runction
divorcc and relationship breakdown disputes. at a stable, constant level, despite changes in the environment. This can be a
Parties retain control over outcomc, supportcd by lawyers who are also active healthy force, prcventing inappropriate changes from taking place. It can also be
in negotiations in structured mectings. a rctlection of stubborn resistancc to change.
As mediation has become entrenched, so have some of the attitudes towards 2- 038
Mediation (involving evaluative clement) maintaining standard models of working. In the UK for example there are fixed
expectations that the partics will exchange case summarics and doeulllcnts and
2-033 An impartial third-paliy neutral who has no authority to make any decisions, uses will then meet on an assigned "mediation day" when a broadly standard
skills to assist parties to negotiate settlement terms and arrive at their own procedurc will be followed. In t~lInily cascs, thc anticipation has bccn that
resolution. The neutral may express some view on merits of issues (how and to couplcs will mect jointly with mediators without lawyers present and will have
what extent this is done lllay vary widely). periodical joint sessions over a period of weeks or months, again following a
The parties have some influence over process and full control over standard f0l111at (though this has changed to some extent with the introduction of
decision-making. The evaluative aspect is non-binding and may heIp parties a "hybrid" model combining elements of the commercial model).
reassess their positions. This preference for consistency is not surprising, given especially that when 2-039
mediation was in its early stages, it was necessary to show that the process was a
Mediation (purely facilitative) solid and viable alternative to litigation with procedural certainty and consistency.
And in many ways these expectations are positive: there are advantages in having
2-034 As for evaluative mediation save that the impartial third-party neutral does not an established and known format and procedure.
express a view in any way or challenge parties' perceptions. But the disadvantage is that "one size fits all" is not always the best course for 2-040
Parties have influence over process, retain decision-making power, and are not some individual cases, which may benefit from a more personalised and bespoke
directly influenced by the third-party neutral. process. Indeed, some will be found to be quite inappropriate for the standard
models, and sometimes practitioners may ironically be faced with resistance to
Conciliation considering other ways of working.
It may be helpful to consider the ways in which the standard models can be 2-041
2-035 This is broadly the same as mediation, but there is some vanatlon of used to embody a creative approach, and the ways in which bespoke hybrid
understanding as to how it differs or indeed whether or not it is different. Some processes can be created.
regard it as more proactive and evaluative than mediation, others take an opposite
view and see it as velY informal and exploratory with no evaluation possible. Using the standard models and designing bespoke processes
There is no consistency of usage. In this book no distinction is made between
mediation and conciliation. 22 Both arbitration and mediation have inherent scope within their frameworks for 2-042
variation, flexibility and creativity: procedures can be adapted to suit the needs of
Negotiation (by parties personally) each case. There is generally a wide discretion as to the conduct of each
process. 23
2-036 No impartial third-party neutral is involved. Parties negotiate directly with one In mediation, a preliminary meeting at which the parties or their lawyers meet 2-043
another. the mediator to identify the issues on an initial basis and discuss process is
Parties have total control over process, content and outcome. Maximum generally beneficial, where this is logistically and practically possible, and
power. economically viable. It enables the mediator to assess whether a standard or
bespoke process is needed. Where a bespoke process is required, it can be
designed with the parties or lawyers. Where the standard procedure is
required- as may be likely in most cases-the preliminalY meeting can serve the
22 It should be noted however that some international instruments (e.g. the United Nations where
National Human Rights Institutions and their complaint handling roles are concerned) distinguish
between conciliation and medialion where the third-party neutral ensures that settlements are in 2) This ~ssumes that the mediator is using a model that gives him or her management responsibility,
accordance with some external factor (such as the legal merits and/or the public interest). perhaps subject to consu Itation.

24 25
 SOiVll ~ l:lJlnlll ::R CONSII)I':RATIONS Jo()RIIII : 1)I ~ VI:L()l'iVll'NT 01; AI)I{
AN OVERVIEW OF THE ADR LANDSCAI'I'.
Till: workillg gi'OU]J ,ilso gavl: positive l:ollsi(il:ralioll l() llll: opporluilitil:s thai
. I' II" b'lantlvl.! Ill\:etillg. nmlllgllig praclJcalilics and
purpose 0 r PIallmng 01 II.: SU S ~.I dig itCIi aCCl:SS to tllc courts might givl: li.ll' online dispuk rl:soluliuJl (ODR)
enhancing the prospect of II SUCCl~S ful C)lItCUIII '. resources to be used, [11 this regard, <Ind gencrally, it rd'crred to I.mel Justice
Wher' il ptCUlllll1ary IIll.!elillg is illlpl'l'I '(Icable to mngc, the Ih,,: ulr~llllllY delll
ur.
2-044 Bliggs' hnal Report on the Civil Courts Structure Revil:w which he prl:scntl:d in
with matters on tlle pllllllC foU l ther optIOns arc tlvailuble and arc hkely Lo be
.II IC rC<lJ) .111 gly u"e-' as communication rcsoun.:<.." (lnd ll.!cl)l) Illgy develop : . for July 2016."7 Tn that Report Lord Briggs referred to ADR generally, and mcdiation
"U ' .
I.!xtlll1ple .. irtlllll meetings . tc1cpNscnc' vl d el~-tc l eph()I1 Y ~nd lelcc nfe.rel1~mg, and conciliation in particuhlr. 2X He favoured the deve\npml:nt of an Online Court
!1Ccurc enl811 and cilcryptl.!d uocument lrnnsact\()I1S all I(lellltatc communicatIOn. and concluded that "The materials accessibll: to court users by engaging with the
. Procedures can be entirely novel and specific to the needs of the situation, as Online Comt should emphasise that litigation should he rcgarded as a last resort ,
2- 045 after lIsing all available means of pre-issue ADR".2<J
for example was established with the Claims Handling Agreement outlined
above. What is needed is an understanding of available processes and a creative
willingness on the pUlt of all concerned to design a specific procedure that meets
the needs of the situation. This is in the best traditions of ADR.

SOME FURTHER CONSIDERATIONS FOR THE

DEVELOPMENT OF ADR

2-046 In January 2016 a decision was taken by the Civil Justice Council (CJC) to
establish a Working Party "to review the ways in which ADR is at present
encouraged and positioned within the civil justice system in England and Wales."
That group produced its Interim Rep01t on the future role of ADR in civil justice
in October 2017, inviting submissions for its final report.25
2-047 That repOlt reviewed the landscape of ADR provision in England and Wales
and current measures for the encouragement of ADR and considered whether
there was a need for measures stronger than pure persuasion to promote the use of
ADR. It considered three different forms of possible compulsion. These were:

a requirement that the parties in all cases (or in all cases of a particular type
or subject-matter) engage in or attempt ADR as pre-condition of access to
the court, with the claimant unable to issue proceedings until evidence of
the appropriate efforts is produced;
a requirement lhal the parti s have in all cases (or all cases of a particular
type or subject-matter) engaged in or attempted ADR at some later stage
such as the Case Munagement bearing;
a power in the cOUli to require unwilling parties in a patiicular case to
engage in ADR on an ad hoc basis in the course of case management. 26

2-048 The working group expressed the interim view lha the 'ourt should promote
the use of ADR "more actively at and around lhe allocation amI dir cti ns stage".
A minority of the gr up w laid go further and inlroduce ADR eithcr a ' a condition
of access to the Court or later as a condition of progress beyond the Court's case
management conference.

24 This is dealt with in Chs 8 and 9. "See iltlps :llll'wlI'jlldicialy,gol', lIklwp-c0l1telltlllploadsI2() 16107Icivil-colirts-stnlclul-e-review:{llw 1-
25 See: hUps:llwwlI'jlldicialy.gov.llklpublicalions!cjc-invite-slibmissiol1s-on-the:/iltllre-role-o(-adr-in- report-}I1I-16:fillal-l.pdf[ accessed 10 May 20 \8].
2' For example, in the section "Ciyil/ADR" at paras 2.16-2.28 and at 6.71-6.74 and 11.22- 11.28.
civil-jllsticel[accessed 10 May 2018]. At the time of publication of this work, the Final Report is still
awaited. '" See his specific recommendations at para.12 .15, sub-para. II, also at suh-pa..a.2 with reference to
'" See para.8.3 of the Jnterim Report. mediation and sub-paras 5--26 with reference to the Online Court.

26 27
 CHAPTER 3

ADR Philosophies and Motivation:

Common Values and Differences

A BROAD CHURCH

Unlike litigation, which has the single object of providing procedures to decide 3-001
disputes based on the principles of law and rights, and in some velY limited
circumstances equity, there is no single philosophy underpinning or motivating
ADR. I Rather, a number of differcnt ideas, rationales and considerations have
influenced its development, some overlapping and some inimical to the others.
patiicular beliefs can sharc fundamental principles and convictions and yet 3-002
can have internal divisions, where aspects of those philosophies conflict.
Differing religious beliefs exist within the various branches of Christianity, Islam
and Judaism. The political spectrum comprises diverse sub-groups, which despite
a common underlying belief, have fundamentally different views on some
detailed issue of principle.
In some ways, and not entirely without irony as introduced in Ch.2, ADR 3-003
replicates some of these systems, in that although fundamental principles are
shared by all the models and groups of practice, there are also some differences of
Weltanschauung, or world view, within its proponents and practitioners. This
"broad church" of models and beliefs enriches the whole and brings variety,
vibrancy and a range of choices to the practice of ADR. This appreciation is
relevant to understanding the variations of philosophy, attitudes and practice
within the various ADR practices.

SHARED VALUES AND MOTIVATION

Within adjudicatory forms of ADR the shared motivation is to provide processes 3-004
that are fair and effective and which provide a considered and just outcome more
speedily and at a lower cost than litigating through the courts. All involve a
privately appointed impartial person considering the relevant facts and making a
decision as to which party is right and how that finding is to be incorporated into

I Note, however, the development of motivating inlluences in England and Wales such as the

Mediation lntonnation and Assessment Meeting requirement for private family matters and the
encouragement of parties to use the services of ACAS, judicial or other mediation, or other means of
resolving their employment related disputes by agreement, both underpinned by stallltory provision
and considered in more detail elsewhere in this book.

29
 SII /\ R 1'1) VALl JLS ;\ N [) [VIO'I I VA liON

an awar( I 01 .'JlI( Ign lCI!t .l'"xIJL'llisc

' . , ''luliJurity and good .judglllcnt coupled
. with tilc Thcse vicws hav~ cngclldered l"oll~idl'rablc dcbatc, both /ill' ami agaillst, alld .1 til tJ
ability to cngcndn trust would no doubt bc n:gankd as Ilecessary lor allY such arc Lo some cxtent mirrored in the views or GCIJl), who in 200R claimed Ihal
pCflion,
"Illcliiatioll is not about just settlement, it is just aboul settlement"."
Similorly, within conscnsual AlJH processes, thc prillcipks that arc shared are There is however a substantial conscnslIs HlIlong dispute resolution plactition- J Oil
3- 005
III 1fC'ign iri ant lmd fundamenta l than (lilY chfferences of vicw and practice. The ers that an agreemcnt bctwcen parties resolving 7 thcir issues in a way that both
shar.:d vnlues and motivation in this context indude the following: find acccptable is preferable to continued connict culminating in judicial
dctcrmination, Many sllch agreements me achieved by direct negotiation betwcen
The principle of negotiated agreement the parties or more lIsually their representatives. Where that cannot be achicved,
consensual ADR processcs provide mcchanisms for patties in disputc to work
3- 006 A fundamental principle sharcd by all proponents of con~cnsual ADR is thc towards reaching a negotiated agrcemcnt This view is widely sharcd by
proposition that, with limited and spccific exceptions, for example wherc matters academics and writers on this subject. x
of public policy need to be publicly hcard and decided or where urgcnt injunctive
rclief is needed and is unlikely to be obtained by agreement, the partics have Facilitating resolution
much more control over the outcomc and can reduce cost, delay and risk if they
choose to resolve their differences by a negotiated agreement that is acceptable to If disputing parties catmot resolve their differences through bilateral negotiation, 3- 012
them, rathcr than through contentious proceedings. Invariably therc is likely to be either by thcmsclvcs or through legal representation, they may require a
an element of compromise, but therc is also scopc for 1110re creative and mutually third-party intervener to facilitate their negotiations, This principlc applies
bcncficial provisions in an agreed outcomc, equally to a widc range of disputes and conflict situations, from neighbours who
3-007 Negotiation underpins the mediation process and as pointed out by Roebuck, cannot agree about their boundalY fence, to corporations with major trans-
who has traced the usc of settlement facilitation historically, even adjudicative national disputes who are locked into seemingly intractable litigation.
processes have historically been incorporated into negotiated mediation agree- The facilitator's role is then to help achieve whatever change is appropriate in
ments: the circumstances, according to the needs and wishes of the parties and to help
break the impasse.
"Everywhere in the Ancient Greek world, including Ptolemaic Egypt, arbitration was De Bono, who coined the term "lateral thinking"9 is clear that a third-pm1y 3-013
normal and in arbitration the mediation element was primary. However formal the role is critical because pal1ies in conflict are:
procedure, mediation was attempted first and a mediated settlement was preferred,
so that even an adjudication might, where possible, be incorporated in an "bogged down in the argument mode of thinking the third party is not an addition or
agreement. "2 an aid but an integral part of the process"l!)
3-008 There is a clearly established public policy in England and Wales "that parties As will be extensively explored in this work, the impartial role of the ADR 3-014
should be encouraged so far as possible to settle their disputes without resort to practitioner, and pat1icularly the mediator, covers a range of skills and activities
litigation",3 This approach has been incorporated into civil procedure of England that pal1ies and, where represented their legal advisors, find difficult or
and Wales and is an underpinning principle of the Civil Procedure Rules (CPR).4 impossible to achieve on their own.
As processes that assist parties with their negotiations towards dispute settlement,
non-adjudicatory ADR including in pat1icular mediation fully supports this public
policy, fi Hazel Genn, "What is Ci vil Justice For') Reform , ADR, and Access to Justice" (2013) 24( I) Yale
3-009 It should be said that there is a view among some academics that a mediated Jouma/ of'La\\' and Ih e Hum anities 397, 411; See also M. Gal anteI', "Justice in MallY Rooms: Courts,
compromise solution to a dispute may be undesirable. One of the primaty Private Ordering, and tndigenous Law" (1981) 19 Journal of'L egal Pluralism I, 17; Symposium Issue
concerns is that mediation places compromise ahead of legal justice, Fiss for "Against Settlement: Twenty-Five Years Later" (2009) 78 Fordham Law Review 1117, 1117- 1280; S,
Shipman, "Compulsory Mediation: the Elephant in the Room" (20 II) 30 C.J.Q. 163, 180-184.
instance takes the view that: 7 Resolution of disputes may be achieved, but resolving underlying conflict may not always be
possible. Bernard Mayer writes that in certain kinds or enduring contlict, immediate resolution may
"a capitulation to the conditions of mass society and should be neither encouraged not be practicable or even desirable, and the practitioner may need to help them live with the
nor praised parties might settle while leaving justice undone."5 continuing conflict: B. Mayer, Staying with Conf/icl: A Strategic Approach to Ongoing Dispules (San
Francisco: Jossey-Bass, 2009).
" Examples li'Dln the array of works supporting this view include the classic R. Fisher and W. Ury.
2 Derek Roebuck, "The myth or modern mediation" (2007) 73( I) Arbilralion: Ihe Journal of'lhe Gelling to Yes : Nego fialing Agreemenl Wi/how Giving In (New York: Penguin, 1981); H. Raiffa , The
Chartered Inslilule of' Arbitrators I. Art & Science of Negotiation (Massachusetts: Harvard University Press, 1982); E. De Bono,
, Per Oliver L.I in Cutts v Head [1984) Ch. 290; [1984) 2 w.L. R. 349. COI!f/icts: A Beller Way to Resolve Them (London : Penguin Books, 1986); and R. Mnookin,
4 See Civil Procedure Act 1997 which introduced the CPR, whi ch in turn place an emphasis on Bargaining wilh the devil: Wh en to negotiate ({lid when to fig /II (New York: Simon & Schuster, 20 II).
litigation avoidance and the promotion and use of ADR where possible. Y See E. De Bono, Th e Use of Lateral Thinking, (London : Jon ath an Cape, 1967).
5 O. Fiss, "Against Settlement" (1984) 93 Yale L.J. 1073, 1075, 1085. "' De Bono, COf!f/icls: A Better Way 10 Resolve Them. pp. J 24- 125 at fn.8.

30 31
 COMMON VALLJES AND DfFI''L:: RI\N('I':S SIIARI ~ [) VAl.lJI ~ S ANI> MOTIV/\TlON

Personal empowerment and self-defcnniJllltioJl cxpens c of' thc other. The qucstioll f'or thc ncutral is how to prcvcllt till: dispute
"sohllion process fh)lll being corruptcd by all abuse of pOWCLI)
One of- the coml11on 1110 - tlvafioils• or _ADI{ practitioners
_ _
who
.
j;IVOur nOIl - I e. Although cmpowerment lllay well bc one of thc motivations 101' thc J 019
3-015
. . I I' '. I rem lve d 'cislon-muklng from a thml-parly neutral, devclopmcnt of ADR, Illany parlies may choose to parlicipate in an ADR process
adjudicatory moc e S IS . • Ii I . 1 _I ' , - , ., , ,
such as a judge or arbitrulor, .l lld to pllJ(.c II Iml y 111 tIe ldnels of the disputclllts 'n order to settle a dispute, without necessarily seeking personal empowerment.
themselves. I I . . .
:n that cvent, they Illay well be 1110re than willing for their lawyers to take a
3-016 In mediation and other non-adjudIcatory ADR processes, the parties generally Icading role, but with the parties having the ultimate decision-making power
have a central role with lawyers sometimes having a supporting fUllction. In regarding settlement.
corporate disputes, executives responsible for business decisions re-take
responsibility for making decisions about resolving the dispute. In displltes of a Creative and tlexible decision-making
more personal nature, including for example separation and divorce matters, the
aim of the process is to involve the parties themselves in dealing directly with the Litigation is limited both in the kind of factors that the court can take into account 3- 020
issues and take responsibility for working through them, in arriving at its determination and in the range of decisions that it can make.
3- 017 At one level, therefore, the process empowers both or all the parties. At Litigl:ltion is rights-based, in that the function of the cOUlts is to establish 3- 021
another level, it can also empower individual parties. Power may come in factually where rights lie, to identify and interpret precisely what those rights are,
complex and often unclear paekages l2 and processes and the way they are and to resolve any conflicts of fact, technicality and law. Judgments are then
managed may help to redress power imbalances between the parties, For based on those interpretations and findings, In England and Wales, the COUlts of
example, where one pl:llty controls relevant information that the other does not Equity (the Chancery Division) can have some regard to cel1ain p~'inciples of
have, this may be shared 13; or if one person's negotiating style is more powerful equity and fairness in a limited range of circumstances, for example III trust law.
than the other, process mles and management may rebalance this,14 However, legal and sometimes equitable principles underlie all disputes in
3-018 However, there are obviously limits to this: some imbalances may well remain litigation,
as they would in the litigation system. There is also the question as to how far it Arbitration, too, is rights-based though in some circumstances the arbitrator 3-022
is the ADR practitioner's role to seek to Vaty the power dynamic between the may be given discretion to have regard to principles of equity and fairness in
patties. Celtainly, this may be desirable insofar as it may be necessary to ensure reaching a decision,16 The parties can however determine which law or set of
that the process is fairly conducted; but there is a view that some relationships norms governs the arbitration procedure (albeit often at the contracting stage).
that have to be continued after the end of the ADR process, such as those between A particular advantage of mediation and some other non-adjudicatOlY ADR 3-023
employers and employees, should leave their power dynamic undisturbed by the processes is that they are not limited to consideration of parties' rights and the
process and that it is not the neutral's function to empower either party at the applicable law, Parties can have regard to a wide range of considerations 17 when
reaching a consensual agreement. These may, for example, include:

legal rights and principles (whether they refer to these and which ones);
principles of fairness and equity (whether they refer to these and which
" \) 1I~d!llennilllltion ~uggcsLS ownership. Scll-:'delcllnillaliOIl omJ ownershiJ1 may lcod LO ~Illpowcr. ones);
mcb! bUI 1101 necessarily, A persoll mny decide fa give ull pOWOl' away to reso lve n dispule-eithcf' mutual interests and needs;
Ihrough dispule IVenrinoss, through rc/1cctil1l1 011 Ihe iITlI)HCI oJ'the decision on third parties (e.g.
commercial considerations, such as the preservation or enhancement of a
chi ldmn in a divorce-see T, 1ri llo, "The Mcdiulion Al lcmotivc: Jlroccss Danger, for Wom~I\" (1991)
IflO( ) Yllle t .J. 1545, 156.1 (In 73). Empowomlcnl includes nw"reIlCS~ Ihat one has choices ond the working relationship, or personal considerations, such as the preservation
wl ll nnci em Iional r~'lldiness 10 ~xcrcise these. . of personal or family relationships, and in either case allowing for better
12 Power issues are more fully dealt with in Ch.16.
understanding, forgiveness, dignity, mutuality of respect and privacy;
13 It should bc noled that there nrc disclosure rules in lillj,\otion whicb rorce parties to disclose

evidence which is IIvm loblu to one and not the other. While similar rules apply in relation to financial
issues in family II1cdio lioll in Ihe UK, this is not the case in civil-C'ol1l111(Jrciul mediation, where such
disclosure is vo luntary, III this regard, see Ch.9 at pnnt~ 9- 070 nlld 9 071 under the sub.heading
"How much illl"orfllnJ lon I, enough?" " For further discussion of this see the commentary all power elsewhere ill this book, notably ill eh.4
1-1 There are 11180 process rlllc.~ in liliglltion Ihal se~k 10 rcdr~ss lin im.'C!Ua lil y oj' power belween Negotiation and ehs 8-17 dealing with mediation.
f)3ltics which CIIIl bu hc1 ll/.ul, Ihough Ihey cnnnOI necessan ly address i'unciulDcntal aspects SlI 'h .IS 16 See Amiable Composition in Ch.6. That, however, is a civil law cOllcept, rarely used in common
inequa lily or ability 10 funcl fhe hllga uon, IIlcllvldllal vulnembilili's or Iimi1!lli ns or helping poTties law systems, though common law arbitrators, while relying on the law, may in practice take principles
with a beLlcr undel'll1l1llding of their opJlt)ns. In consensliu l A DR processes, code.~ of conduct gcncrully of equity and fail1less into account when making their awards.
place the onus olllhl,l i'ucititntor to monuge power inequality (or sllggesl tha i the litcililalor shou ld be 17 See J. R. Sternlight, C. J. Menkel-Meadow, L. Porter Love and A. Kupfer Schneider, Dispute
cxcused Iroln involvemel1l in the proceedings if the incqulilily is sLich thai the proccss C'11111(1I he Resolution: Beyond the Advel'sarial Model, (New York: Aspen Press 2010), pp.266-390, for some
condllclcd filirly \)1' the lIelllrnllty or lhe filcllhalor is likely 10 be compromised ill altt'm pling lo redNs~ other views on the considerations which may indicale thaI mediation and/or some other
lh is). ec 'h.4 Negotiation ror liIJ1ho::r di CI.ls,<;ioll on IIegl1lioti ng power. nOll-adjudicatory ADR processes may be desirable for a particular dispute.

32 33
 COMMON VAUJES AND I)lFI;I~RI\NCI':S SIII\ R I ,I) Vi\ Ll JI ~S ;\ N I) MOTI VAT I ON

. k asseSSll1en,t IHIV l'llg~' l'eg'II'(1 t() the .ullcertainties Disputes between siblings, parcnls ~Ind childrcll, Ii'iends who "rc "Iso busincss J 1127
ns ' . of" litigation
. . as. wdl as
.
t Ile persona I Cll 'Clll1lSI'lllces
., ., .)1" the jJUrtles III relatton to thelr wdllllgness to or professional parlners, couplcs who have become alicnated but who have to
run stich risks; continlle co-pmcntingthese me just a fCw examples of contlict within
the cost factor inherent in legal action and the ability and willingness of relationships that have broken down, that litigation docs nothing to heal. Other
parties to incur stich eosts lS ; kinds of relationship breakdown can also cause rins ill circumstances where
u wide range of other considerations which may for example include timing people may need or want to eontinuc together: business or professional partners
needs, avoidance of the stress of litigation for themselves andlor families, who fall out, shareholders or co-dircctors of companies who have fundamental
employees, colleagues and others or possible dmllage to reputation, disagreements, employers and employees, co-workers, neighbours: disputes
credibility or authority if unsuccessful. between all of these can only be exacerbated by pursuing litigation.
And then there are otber working relationships that have become contentious:
An ADR practitioner may help the parties, individually or jointly as appropriate, negligence allegations between doctors who were once perceived as caring and
to take these considerations into account and to find an acceptable balance. patients who trusted them or between lawyers and their clients.
Lawyers too should be considering these factors. When parties are helped to understand one another's positions and encouraged 3-028
3-024 Terms of settlement may reflect this range of considerations, and may allow to respond appropriately and when they communicate respectfully and thought-
for more flexible and creative outcomes. Factors that can be provided for which fully, conditions exist for a shift in disputants' attitudes towards one another
are simply not available to a eomi may for example include: which can preserve or restore good relationships. When adversarial roles are
assumed, which includes claiming that the other is wrong and blamewOlihy, or
provision for any agreed payment to be made over time or providing value when the relationship breakdown is exacerbated, it can be vcry hard for
in some altemative way; relationships to survive.
agreeing conditional terms that depend on future events; Although relationship preservation may be a common goal, ADR practitioners 3-029
rewriting a contract to amend terms found to be unacceptable; can have differing emphases. For some, it may be a primalY aspiration and in the
providing an acknowledgment, apology, explanation, public statement or absence of reaching a settlement on all issues may be regarded as incompletely
credit; successful. For others, settlement of the dispute is the primalY goal and
providing personal undertakings, individual or mutual, to do things or to relationship preservation would be a bonus if achieved. In many cases, these
refrain from doing things; concepts are entwined: resolving the dispute may be the first step towards
arranging for third parties, for example tmstees or others not party to the relationship restoration, which may take place over time.
dispute, to provide payments, guarantees, indemnities or other suppOli;
making atTangements to a degree of detail and with a level of sensitivity to Maintaining ethical values
each person concemed that no court would be able to order.
Whereas litigation commonly takes place within the full glare of public gaze, 3-030
3-025 De Bono has created the concept of a "design idiom"-a designed and creative mediation and other non-adjudicatory ADR processes are ordinarily conducted in
outcome to a conflict situation. 19 This requires a third-party intervenor, who uses private. In some models, widely used, the mediator has confidential separate
expertise to help the parties to achieve this designed outcome as part of a "design meetings with each patty without the other party knowing what was discussed.
team". This makes it vety difficult for any outside agency to assess whether the 3-031
process was fairly conducted. Parties may have been placed under undue pressure
Potential for healing and relationship preservation to agree to proposed terms, or something irregular might have been said or done
that could have had an adverse effect on the outcome. Because of the confidential
3-026 Although ADR is widely used for issues where there is no relationship between nature of many of these processes, ADR practitioners are velY properly unwilling
parties, the common experience is that where personal and business relationships to discuss with the courts or any other outside agency what took place within the
exist between disputing parties, ADR processes preserve or enhance them, where process. 21
they might otherwise be damaged by the adversarial process. 10 ADR practitioners and organisations arc aware of these constraints, which 3-032
they safeguard in the interests of maintaining the integrity of the process which
IH It should be noted that in some circumstances mediation Illay be more costly, for example if it does may depend largely on confidentiality and trust. In these circumstances, they
not resolve the issues and the parties have to bear their own costs of the process and still have to should be conscious of the need to conduct themselves and the process in a fair
proceed to litigation.
19 Sec fn.1 O.

20 See generally Ch.IO in R. H. Mnookin, S. R. Peppett and A. S. Tulumello, Beyond Winlling:

Negotiating to Create Vallie in Deals and Disputes (Boston: Harvard University Press, 2004); and 21 Confidentiality and evidential privilege are touched on below, and are more fully addressed in

Ch.IO by B. Patten, in M. L. Momtt and R. C. BOI'done, The Handbook o/Displlte Resolution (San Ch.15. The COUlts are not without power to intervene where there are allegations of any irregularity
Francisco: Jossey-Bass 2005). that might warrant such intervenlion.

34 35
 SIIARI\i) \fAI,III':S ANI) ivIO'IIV/\TION

l ' 11111CI' '1IbL'it tl ull diff'\'(JI1( A.DR systems, bodies lind

· II y propel . n, lroce:.~ alit! the way III which they ll!uVC II Support should be llvuilable It needet! .
all( I et IlIca ', ' . . ,
. I' . I I . 'y 011 the views• tilat IhL') ,take us 'to wh::!!, IS. ctlll cally proper. LvidclIlial securi ty IS proviul.!d by. agreei ng Iules tllUl 1.'recluJc s~~tlctIlCll(
Ill( IVI( Ull S lllay Vdl •
The way in which ethical conduct i~ 1~1~lllf es tcd m. Ill cdtallOJl Ol~d olher AI?R l's'lissit>lIs from bem/;! brought bdore tbe: .co urt, Ut purlleulal' th{' wJl llOlI1
~ -OJJ
processes is a product of a Illllnbcr ot ulfll!rc l11 un.cI llllcriocklll g fac tors, wluch )ra.:judic ." rule. wllleb app l ICS ill.cOlll1l10n taW,IlIl'lSl
( I ' I"lcttoIlS. ' I 'f1Cle~H;
' l cncc 0 I' an
rnay include:
~verriJlIlg privllegc, which Val les from one COU llTry to unolhcl, IS morc flllly
addresscd in Ch.15.
a written Code of Practice or other guiding document spcci fying the ethical
lHld practical conduct cxpected of third-party facilitators; Attributes, skills and sensitivity
a writtcn Agrcement to Mediate or to conduct any othcr proccss, which a
third-party neutral will enter into with the palties, rcgu lating practicalities The attributes and skills that ADR practitioners arc likely to nced to perform their 3-036
and behaviour; functions effectively arc addressed in Ch.14 and broadly speaking includc
overarching professional lUles or guidelines that may apply to the conduct personal ane! professional a~tributcs .th~t. cnha?cc the process, and a range of
of mediation in any countlY, territOlY or field of activity, as specified by communicatIOn and other skills that facilitate dialogue and process momentum.
regional authorities such as the EU, regulatolY bodies or funding bodies While some people may naturally have some of these skills, most can be 3-037
such as the Legal Aid Agency in England and Wales 22 ; learned; and ADR practitioners will ordinarily have undeltaken professional
professional lUles for the practice of ADR, as specified by any other training to learn and practise these skills and how to use them appropriately.25
professional body to which the facilitator may belong, for example the Law There are now bodies in many countries that prescribe training, skills and practice
Society or Bar and in the US the American Bar Association's Model criteria for practitioners: the public may have some assurances as to levels of
Standards of Conduct for Mediators; competence where practitioners belong to such bodies and have met the
ethical guidelines provided by any training bodies; qualification criteria.
ethical discussions on a continuing basis in professional journals, at Most ADR practitioners will also agree that a further common requirement for 3-038
conferences and seminars; facilitative practice is sensitivity to the needs ofpal1ies and an ability to gain their
cultural expectations, constraints and guidelines which may arise from confidence and to work effectively with them. This has little to do with models of
religion; community; family; trade, business or professional practice and practice, but is rather a reflection of the personality and individual qualities of the
organisations; or other relevant source; neutral.
individual ethical codes and belief systems.
Seeking a beneficial outcome
Providing a confidential and secure environment
All practitioners want a good outcome for the parties and virtually all would 3-039
3-034 All ADR process models will generally regard confidentiality as critical-unless agree that this would include resolution of the dispute and agreement on mutually
the parties do not want it, for example where they are conducting a facilitated acceptable settlement terms. For many practitioners, if this was the contract with
public enquiry or consultation. 23 This retains privacy for the palties about matters the parties-whether explicit or implicit-that would be a completely successful
which may be personal to them and which do not need to be matters of public outcome. For others, it would only be successful if other requirements were also
knowledge, It also allows greater freedom to consider ways of resolving issues met: for example, resolution of underlying issues, healing or closure, in some
without publicity. cases personal transformation.
3-035 All ADR process models also generally agree that the process environment A good outcome where litigation is pending might also include costs savings, 3-040
should be secure, both in terms of physical and evidential security. Physical avoidance of delay, absence of publicity, elimination of the risks, stresses and
security is perhaps obvious: if parties are very hostile, there should be separate anxieties inherent in litigation and the relief of finality. Terms that meet mutual
reception facilities for them and special care should be taken in managing the needs and interests, that enhance or preserve personal or working relationships,
that allow people to close a chapter and move on with their lives-these may all
22 The USA for instance has the Uniform Mediation ACI 2003 (UMA) which seems to be one of the
be classified as good outcomes.
primary pieces of consolidating legislation present in westernised jurisdictions concerning mediation
regulation.
23 In certain situations there may be a public interesl dimension to the subject-matter and outcomes of
agreement-based processes. In such situations confidentiality may be maintained by the aggregation
and/or anonym ising of mediation stories. This may enable public education, action to be taken to
ensure public bodies change behaviour and processes, or may provide examples of the types of
outcomes possible. An example is the Conciliation Register maintained by the Australian Human 24This is addressed in Ch.IS.
Righls Commission: at hllPS://Wwll(/lIImalirights.gov.allicompiailltsicollciiiatiOIl-regisler [accessed 10 2'Training requirements vary widely across jurisdictions and institutions. The desirable attributes
May 2018]. may vary, also, according to the ideology of the facilitator. These aspects will be discussed in Ch.14.

36 37
 COMMON VALUES AND DII'Tlm.I(Nt'LS

follow predictabk paltc.llls. Thc dislinctiolls have bCCOllIC blul/cd, as l1lodels

Overcoming the cost and delays of litigatioJl
have learned and borrowed from onc another.
. a IS WI deIy 1110 l I VOl ' d b Ihe fa " Ih,ll il IS ,a id to redu ce the costs anel I Iowever, whilc there has been some cross -over or clements from one process 3 046
3- 041 ADR IS u t..: • J . model into another, there IHis also hcell an overriding tendency to keep process
'I '!' t' LitigmtioJl tenth. IV b ' CXPOIlSI C an generally al 0 Il1vnlves
I
(Icays 0 t I Iga 1011 . • ' • . •, .' . , . . , .•
delays of varying (kgre s Thc.r~ hoI' becn nil IllCIl;aSm~ COl1~UI11CI leslstance to models substantially scparate. Practitioners tend to favour particular process
the costs, t.l 'Jays li nd lisk o f' Iltlgatlon whu;h hn.· t'ontnbutcd to the seurch for Illodels, based no doubt 011 which one they traincd in and arc t~ll11iliar with, which
alternatives. 2 (, in turn may be a rellection or the field of activity and culture within which thcy
3-042 The cost-savings element of ADR is based on the assumption that it will be primarily work.
effective. The costs of running a mcdiation will invariably be much lower than a Some attempts have been madc in England and Walcs to integrate aspects of 3- 047
full-scale trial; and the costs savings can be considerable. It~ however, the ADR the civil-commercial and thc family process mod cis to enhance both fields. This
process does not resolve the issues and the parties have to proceed to has been wcll if tentativcly received.
adjudication, then the cost of the ADR will have to be aggregated with the costs Somc spccific diffcrences of modcl and philosophy will bc separatcly
of trial. c7 Nevertheless, there is often some value added by virtue of the ADR addressed below.
process, such as helping to gather information and clarify or narrow issues; and
ADR discussions that do not produce an imlllediate resolution sometillles provide Evaluative or facilitative mediation
the basis for a later settlement.
It is a scductive proposition to distinguish between a "facilitative" approach, 3-048
which suggests that the mediator merely facilitates and does not express a view in
DIFFERENCES OF PRACTICE AND PHILOSOPHy28 any way and an "evaluative" approach, which suggests that the mediator's main
thrust is to make an evaluation of the merits.
3-043 DitTerences or
philosophy and ttpproach arc difficult to identify because models The te1111 "evaluative mediation" is really a misnomer and its juxtaposition 3-049
of practice and individual beliefs and approaches are very diverse. An attempt with "facilitative mediation" creates what in most cases is a false dichotomy. In
will neverlheless be made to indicate some broad differences of approach to ADR fact all mediation is facilitative and there is a wide spectrum of evaluation,
philosophy and practi.ce: stalting at one end with little or no evaluation, through at the other end to a
mediator being willing to express a view on the merits. In between there are
Different fields of activity varying levels of evaluation, different shades of grey: selective questioning,
"reality testing" and raised eyebrows are classic examples. It seems that most
3-044 ADR takes place in different fields of activity, each of which tends to have its mediators fall somewhere between these two ends of the spectrum, and that
own practice and culture. The fields include couples and family; civil and "evaluative mediation", which has become pejorative in some eyes, is not a
commercial; neighbourhood and conununity; employment and workplace; helpful term, unless qualified by an explanation as to where in the evaluative
consumer claims; restorative justice; and environmental issues. 29 In each field, continuum a mediator is placed.
certain ways of working and certain cultural assumptions are fairly entrenched,
and the overlap of processes between fields may therefore not be as great as Settlement-geared or problem-solving mediation
might be expected.
One aspirational approach to mediation and ADR practice is to be settlement- 3-050
Different models of practice geared and cost-saving which may go hand in hand with a negotiating bargaining
style, seeking to trade issues in a search of "a deal". For some ADR practitioners,
3-045 Writer'. acadcl111 . and some ADR practitioners distinguish between different this does not reflect the spirit of ADR and the problem-solving approach that
m c1els of practice, and while som of these distinctions are valid, others are often seeks a "win-win" outcome, with the impartial exploration and understand-
questionnble, especially as models and philosophical approaches do not always ing of underlying issues.
This distinction may have some validity, but is also questionable. Undoubt- 3-051
~. 'cc R. Jllckst)n, "'lel'ielV q{ eillil liIigurioll /Jos/s: '/;,wl report." Otlicc 01' Lhe Jud icinry t)rEnglnnu edly, some disputes require a bargaining approach and some require a
nnd Wale (2009). Hvni lnblc at: h((fJs://w\Vwj/ldicrlll}~gQIW/J"1H:o"tell//'lplt)ad$1.1 OIDoclIII/elll.rI problem-solving approach. Mediators with sensitivity will deal with each
Ruport !j(/C'ksoll-jillul-Nporf-140 1/ O.{)I.({ Inee 'cLl 10 Muy 2() I IlJ. according to its needs. And many may involve a mixture of both approaches. Lax
l? This moy be particulllrly relevunt In Lhe cnse or smnll cln ll11~. wher' cosL~ of an ADR proc .. or of
lilignlinll may he disproplmlon io IlOd/or where nlC:!ctiminn seltlemellts arc low Rnd when: pUI'Lies hnve
and Sebenius point out that although negotiation can be conducted in such a way
to puy their own cosls.
2B The issues in this section are presented in brief outline and are further elaborated elsewhere in the
book.
29 Several of these fields of ADR activity will be considered in more detail elsewhere in the book.

38 39
 ,ISto creale joint gains I'or both parties, "all essential tensioJl ill ncgotiation cxists assulllpliU(1 lhal p~llti(;s C,lllilul engage ill c1h:clive cOlllnlllllicaliull ,!lId
bctwecn co-operative moves to create vallie and cOlllpc1itive (]loves to claim it".lII problem-solving until unresolved emotional and relatiollal isslies arc
addressed. 1:\
Transformativc and relatcd approaches
Intervention and directivcncss
J 052 There is a view that considers the problem-solving approach to be inadequate, in
thal it neglects a critical clement of the process, namely the transl'onnative In adjudicatory processes sllch as arbitration, the impartial third parly necessarily 3-055
potential of the process. This aspires to facilitate party transformation through the has an interventionist role; but in England and Wales mcdiation tmining aims to
adoption by the mediator of an approach that helps to empower the parties and establish minimal intervention and directiveness. This supports individual
give them a greater sense of their own efficacy. Based on the work of Folger and empowerment and sell'-detennination.
Bush," the transforl1lative model of mediation, having as its key aspirations Most mediators, irrespective of process modcl or approach, are likely to 3-056
empowerment and recognition, has acquired a committed following, though there support thc proposition that they should not bc unduly directive or interventionist.
are also those who believe that seeking transformation is only appropriate if the However, there arc different views about what level of directivcness and
parties have knowingly elected for this. intervention is appropriate. Indeed, like evaluation, there is a continuum in this
3-053 Cloke promotes another approach that aims for "personal and organisational regard.
transformation" and talks of "the quality of energy that is released in resolution, The injunction against excessive intervention and directiveness is entirely 3-057
transformation and forgiveness". 32 justified; but this should not be confused with effective management of the
process, where the mediator may need to give directions and to intervene as
Other models and schools of thought necessary (though in some models, such as the transformative one, the mediator's
management role is rather more minimal). There may be circumstances
3-054 Other models of mediation reflect different schools of thought about the process, demanding intervention or directiveness, for example to ensure that the process is
its aims and practice approach. While they are practised in some places, they are conducted fairly, effectively and non-abusively.3!> A blanket and undiscriminating
not widely known or used in the UK. They include: injunction against directiveness and intervention is unhelpfulY

The narrative model is based on a story-telling metaphor, working with

people in better understanding and reconstmcting their "stories" rather than DEFINING THE PROCESSES
simply adopting an interest-based problem-solving approach.33
Another school of thought sees mediation and other ADR processes Defining such a broad range of dispute resolution processes as introduced by the 3-058
through the lens of a communications perspective. They see conflict as a spectrum of processes from consensual to adjudicatory in Ch.2 is challenging.
"socially created and communicatively managed reality occuning within a Attempts will be made to do so in subsequent chapters. For instance in relation to
socio-historical context that both affects meaning and behaviour and is mediation,3X the question has been asked: "What is real mediation and who
affected by it".34 decides?" This is relevant to ask, where one tinds some people holding
The therapeutic model of mediation, often unde11aken by mediators with a themselves out as the arbiters of what constitutes proper practice and what does
background profession in counselling or therapy, is based on the not.
As there is no universally accepted definition of mediation, we are left with 3-059
seeking a consensus among ADR practitioners as to what constitutes acceptable
practice and what does not. Yet even that cannot be authoritative in a field that
3{JD. Lax and J. Sebenius, The Manager as Negotiator: Bargaining /01' Co-operation and provides such a wide range of activities, fields of work, models and approaches in
Competitive Gain (New York: The Free Press, 1986), p.33. In their later work, 3-D Negotiation: a wide range of countries and cultures.
Power{i,1 Tools to Change the Game ill Your Most Importallt Deals (Boston: Harvard Business School
Press, 2006), Lax and Sebenius reatlinn this tension in a section entitled "The 'Negotiator's
Dilemma': Productively managing the Creating/Claiming Tension" (p.1 31). This is further addressed 35 Waldman offers an interesting early view of the facilitative-evaluative debate throllgh the lens of
in Ch.4 below. therapeutic justice: E. Waldman "The Evaluative-Facilitative Debate in Mediation: Applying the Lens
31 Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediatioll: The Trall~forlllative of Therapeutic Jurisprudence" (1998) 82 Marquette Law Review 155.
Approach to Conflict (San Francisco: Jossey-Bass, 1994). 1(, This may be particularly (he case in agreement-based processes which inherently involve an

32 Kenneth Cloke, Mediating Dangerously: The Frontiers of Conflict Resolution (San Francisco: imbalance of power, such as National Human Rights Institutions which conduct mediation or
Jossey-Bass, 200 I), p.xi-xii. conciliation processes to resolve individual human rights complaints.
33 See, for example, J. Winslade & G.D. Monk, Narrative Mediatioll: A New Approach to COIl/lict 37 Process management as applicable to various forms of ADR will be discussed in greater detail in

Resolution (San Francisco: Jossey-Bass, 2000). other relevant chapters in this book.
3< Joseph P. Folger and Tricia S. Jones, New Directions ill Mediation: Commullication Research and " See generally L. StelTek and H. Unberath, Regulating Dispute Resolution: ADR and Access to
Perspectives (California: Sage Publications, 1994), p.ix. Justice at the CrosslVad (Oxford: Hart 2014) .

40 41
 CON( ·1.ll::,ION

Addressll1g. 1 ' . '. .

t liS Issue III -
. ?O()9 I 'IITY Gau g lwll, who co-foundcd the lJS CONC 'I ,lJSI0 1'\l
3- 060 , " , . . "
'r.·1 M ]'. tors sought ,Ill elld to a 'lulltlalllentailst approach to
I
AcacelllY 0 t I' aml Y c( 1<1 ' : ' . " . .. • I' . .... ' . " . .. .
·' 1'1 R /' . .' g tl) Llledntloll s rich hlstol Y .Ill( Jts vdllety 01 Sl1(clsslul AUf{ processes can sl:llld in their OWI1 I ight as ,iltcrnatives to adjudication; or J 061\
Llle( 1!atlon: e ell Ill' ,
approachcs, he pointed out that: lhey call cOlllplement the courl's procedures. I,"wyers need to be nware or the
occasions when litigation, arbitration, mediation or any other A[)t( process has its
"thc more diJrercnt kinds of.skills <tllll knowledge a mediator has, the more likely it is appropri,ltc value and to advise ac~~ordingl~:t:~ . .
that hc or she t:an apply a Illodd lhalwill gellhc job dOlle propcrly. i.e., gel a signed White ackllowlcdgtng the dJ1hculty III nchtevlllg allY one agreed ADR 3-069
agrcement that is both t~lir and workable."
philosophy, the following might pcrhaps embody much of the essence of ADR:
Gaughan cautioned mediators who only had training and experience with one
"ADR Wll1piCJ11Cllts litigatioll <lIld other adjudicatory f0l1l1S, providing processes
model ofmediatioll not to tell mediators who u~ed other models successfully that whieh can cither stand ill their own right or bc uscd as all adjullct to adjudi(;atioll.
thcy had to limit thc scope of their practice. This enablcs Icgal practitioners to select procedures (adjudicatory or (;ol1sensllal)
3-06l The tcst of a successful and acceptable non-adjudicatory proecss, including appropriate to individual disputcs. /\DR gi ves parties more power and greater
mcdiation, should be threcfold . Does it facilitatc partics voluntarily shifting from control over resolving the issues between them, cllwurages problem-solving
entrenched positions? Is it ethical? Is it workable? approaches, and provides for morc etfective settlements covering substanec and
nuance. It also tends to enhance co-operation and can be cOllduei ve to the
preservation of relationships. Effective impartial third party intercession can help to
over(;Ome blockages towards reaching a settlement, and by expcditing and
THE MOMENTUM TOWARDS ADR facilitating resolution the costs, delays, risks nnd uncertainties of litigation can be
avoided. Sometimes it can help to heal or providc the conditions for healing
3-062 Since the first edition of this work therc has bccn a continuing momentum underlying conflicts between parties. ADR proccsses, like adjudicatory procedures,
towards thc usc of mcdiation and other ADR procl;!s~es in a wide range of have advantages and disadvantages which make them suitable for some cases but
activities. In that time, legal practitioncrs and other professionals, judges and the not for others. "43
cOUlis, thc UK MinistlY of Justice and other government depatiments, as well as
the media and thc general public, have developed an increasing awareness about
it.
3-063 There are now pre-action protocols regulating parties' conduct before court
action is conunenced, which aim to facilitate settlement without the need to
launch proceedings, all of which encourage the consideration of ADR.40
3-064 As set out in Ch.5, the courts of England and Wales support and encourage
ADR in many ways and will impose costs sanctions against a patty who fails to
attempt to resolve a dispute by using mediation or some other ADR process when
it is appropriate to do so, on the basis of criteria that have been established.
3-065 The principles and ethos of ADR have also permeated the legal profession,
and although there are still lawyers who resist its use the general trend in the
profession is towards the concept of "dispute resolution" rathcr than litigation.
3-066 Many ADR organisations now exist, including specialist mediation bodies and
thousands of mediators have been trained in the UK and throughout the world in
a wide range of fields.
3-067 This is an international trend. The US has largely led the way, but Australia
and Canada have also been influential, as well as many other countries, including Parliament and of lhe Council on certain aspects of mediation in civil and commercial matters,
a number in Europe, where the EU has supported mediation and issued Directives 26.8.2016, available at: http://ec.ellropa.ell!jllsticelcivil/jiles/actYllrll_adopted_ell.p((f [accessed 10
promoting and regulating its use, both for cross-border disputes and, on an May 20 I RJ .
"' Solicitors' Code of Conduct includes under 1'.2.02 (I )(b), Ihe requirement to give the client a clear
optional basis, domestically. The momentum continues, both nationally and
explanation of the issues involved and the optiolls availahle. The ohligation is turther clarified under
intemationally.41
Guidance Note 15 to 1'.2.02 (I )(b), which states that when considering the options available to the
client, if the matter relates to a dispute between the client and a third party. the solicitor should discuss
'" See Larry Gaughan, "Models", in Family Mediation News (Newsletter of the Family Section oflhe whether mediation or some other ADR procedure may be more appropriate than litigation, arbitration
Association for Contliet Resolution), Fall 2009. or other lormal processes. See generally Code of Conduct 2007, available at hllp:llwww.sm.org.llkl
40 See Ch.5 for further information about the protocols. doclllllents!codelrule·2-client-reiatiol/s.pdl[accessed 10 May 201 R].
41 See the Report lI'om the Commission to the European Parliament, the Council and the European 4' Refer to Ch.2 and the spectrum of processes from consensual to adjudicatory tor consideration of
Economic and Social Committee on the application of Directive 2008/52/EC of the European process suitability.

42 43
 CHAPTER 4

Negotiation

NEGOTIATION-THE PRIMARY TOOL

Negotiation has been described as "the process we use to satisfy our needs when 4-001
someone else controls what we want."!
Evelyone learns to negotiate from the earliest age. Children learn to recognise
when "no" means "maybe", when they can trade favours with their parents and
(sometimes) when something is genuinely non-negotiable. They may explore
strategies including making persistent demands, promising something in the
future to gain something more immediate, showing their distress when they do
not get what they want and understanding when concessions have to be made to
achieve their wishes.
As time passes, negotiation becomes more refined. By adulthood we will 4-002
probably have negotiated many different kinds of agreements and we will have
developed our own individual styles for trying to persuade others to give us what
we want or need. People may bargain with ease or be uncomfOltable with
haggling; they may adopt a pleading manner or a browbeating sty Ie; they may
avoid situations which involve confronting others in resolving differences; or
they may use the threat of withdrawal as a strategy. This will to some extent
reflect individual personalities, although learned negotiation skills will enhance
and augment natural inclinations.
Awareness of the theories and principles of negotiation and conscious practice
will enable practitioners to employ these effectively and appropriately and to help
others to do so.

THEORIES OF NEGOTIATION

Theories of negotiation may be classified in a variety of ways. One important 4--003

distinction lies between the interest-based, problem-solving or co-operative
approach and the competitive approach.2 These two predominant approaches will
be discussed, as well as overlapping areas between them. Additionally other
theories will be mentioned briefly.

I Robel'l Maddux, SlIccess/iil Negotiation, 2nd edn (London: Kogan Page, 1999), p.5 , According to

Maddux, negotiation nonnally occurs "because one has something the other wants and is willing to
bargain to get it."
, See Jetfrey Z. Rubin and Bert R. Brown, The Social P5ychology ~r Bargaining and Negotiation
(New York: Elsevier, 2013) (categorising negotiators as "co-operative versus individualistic versus
competitive"); Gerald R. Williams, Legal Negotiation and Settlement 18-40 (1983) (stLldying

45
 N L~(J(JI 'I /\:IION /\N INT1': RI ~ ST- I~ASI;, [) I'IWBI ,I,:r-./I··SOI VINC; AI'I)IH );\( 'II

AN INTEREST-BASED PROI3LEM-SOLVIN(j APPROACII would sce tile CilSL~ lost, with heavy costs of its own and liability lill' the otiJer
party's costs. The daimanl accordingly agreed to contribute no,ooo to the
defendant's expenses of voluntarily changing the brand namc, which led to a
Getting to Yes
settlement. The claimant got the best rcsult it would have had at trial, with
4- 004 The interest-based problem-solving approach to ncgotiation is particularly helpful certainty, more quickly and at a slightly lowcr cost.
to cOllsensLis-based ADR practices. Also called "integrative" llegotiation (becaLise Galantcr points outl> that ;1S "transaction barricrs", such as legal costs, increase,
of the potential for parties' interests to be integrated in ways that enhancc the so therc is a greater rangc of possible settlements from which parties can choose
creation of joint value), intercst-based negotiation focuses on the intercsts of the rathcr than procced to adjudication.
disputants, which may include thcir needs, wishes, concerns and fears. It aims to White criticised the Getting to Yes principles as bcing naive in the face of 4- 009
find a resolution ofthe issues that meets all such interests and needs ill a mutually tough and unprincipled negotiators on the basis that the authors secm to assumc
beneficial way. The process of interest-based negotiation involves joint that a clever negotiator can make any negotiation into problem solving and thus
problem-solving, expanding options and aiming for mutual benefit. completely avoid the difficult distribution typc situations which can arise in
4-005 Fisher and UIY in their seminal work, Gettillg to Yes, developed their negotiations."! Fisher however argued that to treat the distributional issue as a
particular form of principled, problem-solving negotiation and identified certain shared problem was a bettcr approach than to treat it as a contest of will in which
key negotiation principles': a more deceptive, more stubborn, and less rational negotiator would tend to fare
better, and that evcn win/lose bargaining could profit from the kind of analysis
con~~ntrate on parties' respective interests rather than taking and defending suggested in Getting to Yes. H There is no doubt that the Getting to Yes principles
posltlOns; were ground-breaking in negotiation theOlY and practice, evidenced by the value
adopt a problem-solving approach instead of allowing personality differ- still placed on them decades after initial publication.
ences to side-track the negotiation; Fisher and Brown, for example,~ flu·ther developed the original principles to 4-010
before making decisions, generate as many options as possible particularly deal with disagreements within relationships and to consider ways to nurture and
those creating mutual benefit; maintain relationships, Ury, in later work, dealt with the subject of negotiating
establish objective and fair criteria for a resolution, rather than the with people who do not use a principled, interest-based approachlo and more
jUdgment of either palty, recently, in 2015, II continued the principled negotiation theme, but focused on
the need to first negotiate with ourselves before attempting to achieve our
4-006 Fisher and DIY describe how these principles can be achieved in practice negotiating goals.
thr~ug~ the. concept of BATNA (Best Alternative to a Negotiated Agreement),
which Identifies to each pruty what the best outcome would be if the issues were Underlying needs
not settled by negotiation. 4
4-007 Alternatively, Haynes refers to WATNA (Worst Alternative to a Negotiated An important theme of interest-based negotiation concems underlying needs. 4-011
Agre~m~nt); which .is the worst potential outcome if the issues are not settled by This theme suggests that the negotiator looks beyond stated aspirations and
negotiation. Negotiators need to be aware of their own and the other side's best attempts to assess underlying needs or preferences. Distinguishing between needs
and worst altematives to a negotiated settlement, and by focusing on these are and wants can allow many opportunities for alTiving at creative solutions in all
better able to make decisions as to whether or not to settle and on what tem1S. fields of activity. 12
4-008 he following demon ·trates a creative example of undertaking a BATNA and
WATNA exercise. In n p<I"ing ofr acli 11 between media c mpani " the
defendant denied passing oIr but was willing in mediation to cons ider changing a
competing brand name, albeil (hat there would be tens ofthousaIlds of pounds of " See M. Galanter, "The Quality of Settlements" (1988) Joul'l1al a/Dispute Resolution 82,
expenses in doing so. The c laimant Cillculatcd lhat its BATNA wou ld be an 7 E,g see James J. White, Essay Review: "The Pros and COilS of Getting to Yes" (1984) 34 Journal or

injunction to stop use of the competing name; but this would involve over a Legal Educalioll 115 ,
, White p,121 (see fn.7); and see also Roger Fisher, "Negotiating Power" in (1983) 27 American
year's delay and an irrecoverable cost element of over £35,000. Its WATNA Behavioural Science; and in J. Murray, II. S. Rau and E. Shennan, rhe Processes C!r Dispule
Resolulion: rhe Role C!f Lmjlyers, 2nd edn (USA: Foundation Press, 1989), pp,99- 100,
negotiator behaviour and categorising negotiators as "cooperative" or "competitive" types) in Russell Y Roger Fisher and Scott Brown, Gellillg Together: Building a Relatiollship Ihat Gets to Yes (New
Korobkin, "A Positive Theory of Legal Negotiation", 88 Geo. LJ. 1789 (1999-2000), York: Penguin (Non-Classics), 1989).
, See Roger Fisher and William Ury, Gellillg to Yes: Negotiatillg Agreement Without Givillg [11 (New III William Ury, Gellil/g Pasl No: Negotiating Ivilh Diflicult People (London: Random House, 1992).
York: Penguin, 198 I), Ch.2, " William Ury, Gellil/g to Yes with Yourself; alld Other Worthy Oppollellls (London: Harper
4 D. Lax and J. Scbenius, I IIIJ"VO I'd colleagues oi'Fishcr And Ury, preier Ihe Icnn "no-deal option" to Thorsons, 2015).
BATNA. See their book 3-D NegofiwlOIl: Powcr/ul Tools 10 '1IlIIlge the Game ill Your Mosl 12 Andrew Acland, A Suddell Outbreak C!f COllllllon Sense; Mal/aging Call/lie/ rhlVugiJ Medialioll
lmportalll Deal.f (Boston: Jlarvard Busll1ess Sclmol PreSS, 2006), pp.23 ane! 256. (London: Random House Business Books, 1990) recommends mediators to discover the interests
, John Hayl\es and Orctai1 n I Illyn Mediatillg Divorcl' (San Frnnc isco: JOHscy.Bass, 1989), p, I I , behind positions, and the needs behind interests.

46 47
 Nh(:m I/\IION

Creating value the other negoliator and where <IPllrujlriatc invokes COlll1ll0n principlcs OJ' sharl~d
interesls. The clear rejection call lilen !low I'J'OIll that comlllitment and respcct.
4- (112 J\ further app roach adopts the view thal it is possible to create value within the Ideally, this should be accolllpanied by alternative options, appropriate
context of interest-based negotiation by taking advantage of di1lcrellces. For qualinc<ltiol1s or constructive rcquests.
example, it may be possible to construct a settlement that accolllmodates tbe Any reaction to rejection should be listened to with respect and with 4-018
different aspirations <Illd priorities of the parlies. acknowledgement of thc other person's viewpoint, without concession of one's
4 0[3 Behind the notion tbat it is possible to create joint gains, is the idea that a own position and without over-reaction. Patience and consistency arc nccded. If
co-operative, problem-solving model, with pooled information, a t1exible and lhere is an impassc, it may be necess(lIY to cxplain the consequences of not
creativc approach and an appreciation of one another's interests and concerns, reaching agreement, but care should be taken to ensure that this is not perceived
will cnablc patties to arrive at an outcome which enhances the position of all as a thrcat. At this point, Plan B may have to be invoked, and cooperation
parties, rather than having one party as a "winner" and another as a "loser". withdrawn.
4-014 The following real life example illustrates this approach. Shareholders in a Ifunderlying interests and needs cannot be met, then it may not be appropriate
fast-food company with a number of branches found it impossiblc to continue to enter an agreement at all.
working together. They split into two groups, each of which wanted to buyout However, there may still be ways to achieve an agreement. Ury suggests 4-019
the other. Neither would sell to the other, and each threatened court action. Their building a "golden bridge" for the other to cross towards resolution: reaching out
impasse left them at loggerheads. In a problem-solving negotiation they to the other party, exploring their unmet needs and interests, helping them to save
examined ways of dividing the company and arrived at a solution whereby each face, finding ways for them to present an outcome satisfactorily to their
group took over the branches in an agreed area, with an appropriate cash constituents, and rebuilding confidence-these may all help to bridge the
adjustment. They agreed to operate independently but would liaise on activities differences. The secret, Ury suggests, is the integration of "Yes" and "No": the
that could benefit all branches, such as some joint publicity and occasional bulk ability to stand firm on what one needs without damage to valuable agreements
purchasing to achieve advantageous buying prices. and prized relationships.
4-015 As observed by Lax and Sebenius,13 there would ultimately be a tension
between the creation of joint gains and the division of the resources. In the above Designing creative solutions
example, there was also hard bargaining about the allocation and valuation of the
branches and the size of the cash adjustment. Nevertheless, this approach to Another proponent of a problem-solving approach is Edward De Bono, the 4--020
problem-solving negotiation allowed greater opportunities for positive and originator of the term "lateral thinking", which he describes as being concerned
mutually beneficial outcomes than a purely "value claiming" approach. with restructuring fixed concept patterns (insight) and creating new ones
(creativity). De Bono believes that the traditional methods used to resolve
Principled rejection conflicts and disputes are primitive, inadequate and destructive, and that a
fundamental shift in approach is needed. Hence he advocates the adoption of
4-016 Ury has identified, also, how impOltant it is that parties are able to reject techniques that facilitate the creative design of solutions to problems. His work,15
unacceptable requests or demands in an eflective way that does not entrench which analyses modes of thinking and the way the mind works, suggests that
conflict, but rather supports principled negotiation. 14 disputants themselves are worst-placed to resolve their own issues since they are
The thrust of what Ury describes as a "positive No", is that negotiators need to caught up in a "tension of hostility" and take positions that do not allow them to
reflect on any underlying positive aspect of their reason for rejecting a pmticular communicate with or ttust one another easily and, hence, are inimical to the
demand and to maintain this at the forefront of their thinking and response. design of solutions. The conclusion that either representation in negotiations or
Negotiators need to prepare for the negotiation by rooting their approach in the assistance, perhaps from a third-palty neutral, can be drawn from De Bono's
positive principle and values, crystallising their positive intention and what they views on this. De Bono suggests that the use of lateral thinking and the adoption
are aiming to achieve. Preparation also includes having a "Plan B"-what will be of a creative, problem-solving, approach to the design of solutions, encourages
done in the event that agreement cannot be reached: this adds power to a the generation of alternative solutions to issues, large and small. 16
negotiating position and removes dependence on gaining agreement.
4-017 The "No" should be thoughtfully and positively presented but remain firm
about the commitment to address the underlying concerns. This avoids personal
blaming, presents facts objectively, uses language with care, gives due respect to

13 See below under "The essential tension between interest-based and competitive approaches".
14 Ury, The Power ol a Positive No: How 10 say No and Slili Gel 10 Yes (2007). This work sets out " Edward De Bono, COI!flicts: A Better Way to Resolve Them (Penguin Books Limited, 1985).
both a theoretical underpinning as well as practical strategies that enable negotiators to reject 16 An example of creative problem-solving provided by De Bono is illustrated in an exercise in

inappropriate demands or behaviour but at the same time to maintain a positive approach. "lateral thinking" called the Tale 0/,71110 Pebbles or 71,e Black Pebble.

48 49
 N L(j( )'\'1;\ \'I ( >N ()'IIII': I~ I'll LOI{ I LS 1\ N \) MOI)U ,S

> ']1 if' this nlay lead to ,l1l impasse. ;\ problem-solvin g negotiator dnes not haw
COMPETLTIVU THnORY . . IC( I approac J'
cv(; . . a strong, Pl'IllCtJl
to bc weak, bl.lt can Ill<lllltalll 1 III t I1C I'ace 0 I' t I1e
The competitive approach to negotiation is sometimes eallcd "positional", toughest negotIator.
4-021
"distributive" or "distributional" bargaining, in that there are seen to be limited
resources for distribution and the more that one party achieves, the lcss there will
be for the other. In this approach negotiation is a form of contest in which there THE "ESSENTIAL TENSION" BETWEEN INTEREST-BASED
will be a winner anel a loser, and that in order to be the winner, the negotiator AND COMPETITIVE APPROACHES
needs to be tough, powerful and skilful in maximising his own or his principal's
self-interest, irrespective of the overall effect on others. I ? This approach is Lax and Sebeniu s21 have adoptcd a balanccd position between the competitive 4--026
sometimes linked to "power-based" negotiation (determining who is 1110re and interest-based approaches. They view these two perceptions of the bargaining
powerful). process as being a distinction be~ween "value crea~ors" and "value clain:ers".
4-022 Competitive negotiators may consider any gesture of goodwill as a mistake Value creators are those who consider that the negotIators should be sufficlCntly
because there is no celiaillty that such a gesture will be reciprocatcd and because co-operative and resourceful to ensure that their agreement produces more
it may be constmed as a display of weakness and, hencc, may produce an even positive results for each party than if they had not reached an agreement. Value
tougher response from the opposing negotiator. Toughness involves opening high, claimers believe that negotiation involves hard bargaining to ensure that
making few concessions, and being untroubled by the prospect of an impasse. I H negotiators, or the people they represent, obtain the most favourable tenns,
4-023 Murray, Rau and Sherman l,> have analysed the risks of adopting strategies thereby "winning" as against the other party who thus necessarily "loses". Lax
favoured by competitive theOly. These strategies tend towards a hostile and and Sebenius consider that both kinds of process are present in negotiation, and
confrontational approach and response, focusing on manipulation and threat that there is an "essential tension" between the creation of value and the division
rather than on trying to understand the issues sufficiently to find a mutually of it. Their understanding and synthesis of problem-solving and competitive
acceptable solution. This means that joint gains cannot be identified, communi- approaches has resulted in a paliicularly useful model of negotiation.
cations are distorted and tension, mistrust, anger and fmstration may result. It is Thompson also views the apparent dichotomy between the two approaches as 4--027
not uncommon that the brinkmanship inherent in the competitive approach and a false choice and argues that a skilled negotiator does not have to choose
the concem not to be outdone by opponents results in deadlock and a breakdown between being tough or being nice but, instead, must be able to function both
of negotiations , with consequent delays, stress and additional costs of all kinds. co-operatively and competitively, sometimes simultaneously.22
This foml of negotiation may be viewed as antithetical to some proponents of
ADR, but it is an approach that is commonly used in one form or another and
needs to be understood and accommodated. OTHER THEORIES AND MODELS
4-024 The question that inevitably arises is how a negotiator who adopts a
problem-solving approach can cope with one who adopts the competitive Interest-based negotiation is sometimes contrasted with rights-based negotiation, 4--028
approach. Ury has suggested various practical techniques, such as recognising in which the negotiators are primarily concerned with the law and the likely
and responding appropriately to tactics used by the other side, making outcome in the event of a comi trial. While in practice negotiators may have
acknowledgments without conceding, using questions skilfully, reframing tactics, regard to rights as an element in negotiation, in many cases this is unlikely to be
exposing tricks and helping the other side to save face. 20 the only consideration, and parties may well consider other factors, including
4-025 Should these or any other problem-solving strategies not be fruitful, an commercial and personal ones. It is arguable that pedagogic practice in law
appropriate response can be chosen: examining the best and worst altematives, schools continues to focus on a "rights-based" model of justice at the expense of
maintaining a principled position, trying to seek mutual gains through a considering either the existence or the value of interest-based negotiation?3
problem-solving approach and resisting all attempts to bully, threaten and cajole, Another model of negotiation, with a socio-anthropological base, is described 4--029
by Gulliver. This comprises various phases which cover: the search for an
appropriate arena for the resolution of the dispute, defining the issues and
asserting differences, then narrowing these through the bargaining process,
17 See J. S. Murray, "Undelstanding Competing Theories of Negotiation" (1986) 2 Negotiation eventually "ritualising" the outcome. 24
Joul'I1ol179.
" See Gavin Kennedy, Evelytfling is Negotiable: How to Negotiate and Win, 3rd edn (Arrow Books
Limited, 1997). (See also 4th edn, 2008). In a person al c mail to this book's consultant editor, Gavin 21 See Murray, Rau and Shennan, Pmcesses of'Dispute Resoilltion: Th e Role o(Lawyel's (fn.19)

Kenncdy added: "I would not recommend aggres~ive behaviolil'; more firmness of trading than " Leigh L. Thompson, The Tl'llth Abollt Negotiations. 2nd edn (Pearson , 2013).
fighting talk." 23 See B. Waters. "The Importance of Tcaching Di~putc Resolution in a Twenty-First-Century Law

19 J. S. Murray. A. S. Rau and E. F. Shennan, Processes of Dispute Resolution: The Role o/Lawyers School" (2017) 51 (2) The Law Teacher 227-246.
(New York: Foundation Press, 1989), pp.78-80; (and 31'd edn, 2002). 14 See P. H. Gulliver, Disputes alld Negotiations: A Cross-Cllilumi Perspective (Academic Press,
1979). . ..
211 See Ury, Getting Past No: Negotiating with Dtfficult People (fn.IO).

RI
50 51
 NEGOTIAJ'lON SOM/-: PIV\CTtl'AL ASPECTS ()Ii NI':(JOTIATION

4-030 Murray Rau and Sherman-'" 1.e t'Cl . to further 1llc{lwdology:

. .
"O(1lI1C ThcOlY" . "III'll,king " rh~ thmilcllsioll
"'O!lll (IV\; . '"
I la1~~ to Iltel:()J1t~sl bdwcuJI ..:mpalhy IIllll
., ,
. ..' I I f ' 'lysis used 10 cstabllsh the Opt1ll1l1111 settlelllcnt
whIch IS m fact a met lOt 0 elna ., . , .. , ," , , ". ' . , " I'sert ,lVt!1le 'S. , III {om1el n:quJrlJlR - go d lIstening skills to dcmollslJ<llc .111
.1 t, I ' ... Y nnrticlllar casco In essence, It lI1volves ,I tIt tOI tat II '.1 ' 1lnding of' the Interests, needs and pcrspucllVI;S of Y.OllJ' adven;ary and lhe
strot gy to be UuOp "' ( III un /' . '" . 'I ,. ,, ., ulluers 1 ' ['
' I', (I'l'aJ1im; to 110gol
wte CO-OPClcltlvc y ciS long as both 01 all do 'lbllily to .. tat' ICllrly an I cOJlfidently Ihe IIIlcrests IlIll pel 'J! clrvcs
am roach a II OWlllg . loll\il.. tl,""",
s, bul (langes
I. • La II
, " 'I ilivc uml rctailatOlY approach as soon as anyone
'omn
n 's own SId', , , . _ ,
lcfccts t'Jom II C -Clpcratl vC Jl10~ ,. ' .. In cs:,cnCl;, MlIo&in'. conclUSion IS lhallhcrc arc SILuaIIOI IS. W!lCI'C one sltou ld 4- 036
4-03] BralllS and Taylor have deVised complcx processes to crcatc tall' diVISIOns, , 'ly declinc to negotiate but that more often than not negotiation may well be
whether of goods or preferred positions, on a set of issues in ncgotiations. 2 (' Their pJOpel . . . .. I . . h' b . 'd
. Jl'l"lte and IJroductlve 111 cases where the II1ltla reactIOn Illig t e to legal
approo h involves Lhree, tlJt; I~1cnts. rhe. first is t? set forth explicit criteria, or apPlol ' . I
the other as "the devil"- too untl1lstworthy or dishonest to contemp ate
properties. thllt c h:u'octCrtb dIfferent notions of fairness. The second is to provide
negotiating with.
Rys l mali procedures. or algorithms, for obtaining a fair division. The third is to
illuslral th, e a lgorilhms with applications t rl;ul-lIfe s ltuHtions, This approach
preparation and set-up
brings together work drawn from different discipline, Llnd include ' philosophical
questions of fairness and justice, economists' is 'ucs or lhe requiroments of <l fall'
All practitioners and writers agree that preparation is fundamental to effective 4--037
scheme, and mathematical concepts.
4-032 ne otiation. For example, Fisher and Shapiro refer to the three lessons a lawyer
The methods and theories discussed in this chapter do not present an
exhaustive or comprehensive chronicle but rather serve to indicate the range of
ha~ leamed on one of Fisher's negotiation workshops: Prepare: P~epare.
possible approaches. Prepare. 2H Preparation includes reflection on pUl"po~e and goals; conslden~g ~he
sent and future potential of the relationship WIth the other party; thlllklllg
~~~ut each party's interests and how far these. are con~patible; listing and
prioritising opt~ons; re~ecting on one's BATNA; hemg emotIonally prepared; and
SOME PRACTICAL ASPECTS OF NEGOTIATION
having a clear Idea of llltended process, . . . . 29 .

4-033 Lax and Sebenius have referred to three dimenSIOns of negotIatIOn : tactics; 4--038
While it is not feasible to address the practicalities of negotiation in any
deal design; and set-up, These aspects include: ensuring, that the right palties ~nd
comprehensive way, some aspects wiII be briefly mentioned.
their decision-makers are involved; identifying potentIal blockers; researchmg
and understanding all interests; avoiding psychological misconceptions; consid-
Whether or not to negotiate
ering the no-deal options on all sides and the Zone of Possi,ble Agreement (see
4-034 below); ensuring that the other party understands that one IS not compelled to
A fundamental question may arise at the outset as to whether or not one should be agree at any cost; and preparing the correct process and sequence of steps to be
negotiating ut all .. ol11etimes the "other side" may be perceived as untrustworthy, taken.
malevolent, dishonest Or even eviL Should the issues rather be resolved in In the design stage, Lax and Sebenius suggest negotiators consider how to 4-039
another forum , for example through litigation-or in an international context, create value by looking behind stated positions and understanding all the interests
tJu'otlgh direct confronlation'!
4-035 involved, thinking imaginatively how to create greater value all round, and
Mnookin has addressed this dilemma in Bargaining with the Devil: When to dovetailing differences.
Negotia/e, When to Fight,].? Tn as ess ing real life situations-including Churchill
who chose to fight ralile thun negoliate, and Nelson Mandela who chose to Zone of Possible Agreement and the negotiation dance
n gotiate when ther, were fighling. in both cases correctly judged-Mnookin
ha provided helpful guj lallce rOf n~g tiations where this issue arises. In the Howard Raiffa 30 has emphasised the need: to undeltake detailed assessments of 4--040
fo rmer. the decis ion nOI to nogoliat· was influenced by Churchill's personal the risks of litigating, to analyse the parties' positions and prospects of success,
moral beliefs and gllt fee lings; and Ma.ndela's decision to negotiate with the and to examine the criteria for settlement on each side. He deals with the concept
Soulh Afi'iean govemment IVa. linked to the management of three tensions. The of "zones of agreement" (also called the "bargaining zones" or the Zones of
first of these being what is going on across the table with your adversary and Possible Agreement (ZOPA» which denote the parameters of the range of
what is happening behind the table with your constituents, The second relates to
the tension between pragmatism and principle, or a clash between "rational" and

25 See Murray, Rau and Shennan (fn.19, p.89); see also R. Axelrod, The Evolution o.fCo-operatiofl
2. Roger Fisher and David Shapiro, Building Agreement: Using Emotions as YOII Negotiate (London:
(New York: Basic Books 1984; Revised edn, 2006).
Random House Business Books, 2007), p.169.
26 Steven J. BTams and Alan D. Taylor, Fair Division: From Cake-CUlling to Displlle Resolution
2. See Lax and Sebenius, 3-D Negotiation: POlVel.1itl Tools to Change the Game in YOllr Most
(New York: Cambridge University Press, 1996).
Important Deal (fn.4). . .
27 Robert Mnookin, Bargaining with the Devil: When to Negotiate, When to Fight (New York: Simon
)0 Howard Raiffa, Th e Art & Science oj Negotiation (Massachusetts: Harvard Umverslty Press,
& Schuster, 20 I 0).
1982).

52 53
 NmjOTIAI 'IUN ~()IVII'. 1)1~i\C IICAL ASI'I;.CTS 01 ' NI':CiOTIAIION

possibll: tcrms or sctliclllcnl within which a palticular disputc may be r~solvcd , Resp()ns es to pr()posals
givcn the aspirations of cach pmty, and any other factors relevant to seUlemcnt. 11
4- 041 Raiml refers to "the negotiation dnnce" or the Iluctunting pattern or The following arc some or the mailers to be considcred in responding to ,. 047
eonccssions and reassessment of perceptions ,Illd aspirations that takes place proposals.
during negotiations. The eonccpt of a negotiation dance has been put forward by Where ull ~xtrernc ,mel unrclilislic demand is Illude, cienl'ly Lhe res ponse nlllHL
other writers, for example Adair and Brett, who see it as the way in which rell ec ! its tllllIl'C 'pli\hilily. 'I\\'o ['lIIihcl' point~ necd to bc bome in mind. First.
co-operativc nnd competitive behaviours wax and wane during the stages of the there may be aJl Impasse al S lIiC litlm' ~Iilge thnl could lend LO Ihe suggest Ion.
negotiation process.]2 either l!xplicil or imp!ic il, that maLters hI: rc:;olveu by s! lIuing Lhe dilfcl'cncc (Ihe
4- 042 Indecd Thompson has presented an image of ZOPA as a dance f100r on whieh Illiupoillt rule). llowcver, this may 11 t have rcgar<l to the fa I lhal on' liidc may
the negotiators dance, each hying to lead the other to the point beyond which ha e sltUted with an extrClll1! position whil) the other started moderately, nor to
they will not go-what RaitIa calls their reservation point (RP), sometimes Ihe fuCI that one sid\,; Illay have mnde Significant con 'cssiolls in negotiati ons
vicwed as a "bottom linc".)] To illustrate the "bargaining zone" or ZOPA bctween while Lhc oth I' has mude small r ones. A lIcnltl livcly, somc negotiators might
a buycr and a seller, if the buyer's RP is higher than the seller's, the distance respond to an extremc del11llld by maklllg un oquHlly ex treme rcsponse. [lence, iJ
between the two points is called the "bargaining zone" .34 a lUodcruteu respo nse is made, lhis s hould be borne in nllnd if, subsequently,
splitting the difference is proposed. Second ly, are, ponse needs to ul1dermine the
Opening the negotiations or
nnchoring ellcci the inilial r>roposal.
It is not easy to undermine the power of the initial anchor, which has a 4-048
4-043 Korobkin makes the point that good negotiators do as much (or more) "asking" as continuing effect even where people arc aware of its influence. One possibility is
they do "telling".35 Hence, negotiation time should be spent on asking the other to change the frame of reference in the response to the initial proposal. Lax and
patry questions in order to gain information. This enables the parties to establish Sebenius give an example of this: in negotiations for the acquisition of a software
the RPs and the bargaining zone. company, the initial (anchoring) olfcr wa: I ased on a price/earnings ratio . In
4-044 Many negotiators prefer to allow the other side to make the opening offer response, the required price was ba. >d on n diiTcrent valuation method-a
rather than do so themselves. This avoids the potential risk of offering more than discounted cash flow analysis. This effectively unfr ze Ihe initial anchor.39
was expected and also gives an indication of the opponent's thinking first. This Another way to overcome the initial anchor is to set out one's own 4-049
enables them to respond appropriately and enter into a negotiation process. proposals-supported as far as possible with data and facts. This can be further
4-045 Thompson considers that this approach may well be correct where a negotiator enhanced by writing down the responding proposals: it seems that putting
does not know as much about the other side as they know about him; but proposals in writing, whether initially or in response, helps to entrench an
considers that in other circumstances it will be advantageous to make the first anchoring effect.
offer. 36 Thompson's assertion is that, although conventional wisdom suggests that Opening offers are not commonly accepted, as there is an expectation that the 4-050
one should not open first, the indications from research and literature are that it negotiation dance will take place. This is often built into the level of opening
always benefits a party to make the opening proposal. offer and response. If an opening offer is accepted, it may raise the question
4-046 The reason for this lies in the plinciple of anchoring. 37 This describes a whether the proposal was too generous and lead to possible attempts to backtrack.
cognitive bias that occurs when individuals place undue weight on one piece of
information, event or suggestion that has been placed before them. A significant Continuing the negotiations
body of research suggests that when an anchor is introduced, eventual agreements
tend to be guided towards the anchor. 3H Whoever makes the first proposal Some factors in this regard will be briefly mentioned. 4-051
establishes the anchor. Where there are a number of related issues it is generally advisable to
negotiate them on a parallel basis rather than sequentially. This widens the range
of possibilities for prioritising and trade-offs. If some of the issues are resolved, it
is better to "park" them subject to addressing the others, rather than to regard
31 Where a zone of possible agreement exists, it will be found in the overlap between the bottom end
them as finally settled: it is not at all uncommon to have to revert to resolved
of what a claimant will ultimately accept and the top end of what a respondent will ultimately offer.
" Wendi L. Adair and Jeanne M. Brett, "The Negotiation Dance: Time, Culture, and Behavioral
issues and bring them into the reckoning during negotiation of the remaining
Sequences in Negotiation" (2005) 16( I) Organization Sciel/ce. issues. Ultimately, comprehensive terms will need to be formulated that pick up
)) See Thompson, The Trllth abollt Negotiations (I'n.22). all the different elements.
34 Korobkin, A Positive TheOlY o.f'Lega/ Negotiation (th.2 at 1792).
35 Korobkin, A Positive Theol)' o/Legal Negotiatiol/ (fn.2 at 1804).
30 See Thompson, The Truth abollt Negotiations (fh.22).

J7 See Thompson, The Truth abollt Negotiations (fn.22).

38 See Lax and Sebenius, 3-D Negotiation : POl1'el.iul Tools to Change the Game in YOllr Most J9Lax and Sebenius 3-D Negotiation: Poweljitl Tools to Challge the Game in YOllr Most Important
important Deals, (fIlA). Deal (fnA, pp. 194·- 196).

54 55
 NI·:C;OTIATION SKII .I.S , SII{;\TJ<:<1I1 :S ;\NI) S 1)'1,1',

Ncgolrol Irs . IIOU I( I t)C IIW,l or

. r'C (11' •S()IIl,-' Iliu I.!lllollonal andI Ipsychological
I' -
As pointed Ollt by M urr" y, Rall ;lIld Sh ennan, " the (cl/IIS sl1 ategy, theol y lind 4- (157
I
· t' u' 11) :.uuj whit: h alket people generally. . Ie III": onen cun/"used and llscd illlclchangcably. whurcus their dln'cJ~nccs ill •
Hlel rsal pllYJI111 'go ItlI . I'k
Appropno . Ie que,,,'sli"tl ing •'Inu discussions. arc r e ly to ,ake plw:c dUrIng l ol1"nt; ,mel Ihere is not necessHrily a relationship bL'lwcen thl.!lll A negotiator
4 fJ52 11
· t'o
nego t III In s ublllll
. ,' 111e i tis
.,' \JCS Ihe t:IfCdli . or proposuls. ;md expless und II P wldl liS' an 11I1ormal, rdax'd sly l ', follow till approach whl '11 lil lis, in
l11a
y • , .1 d I. I l
underlying illl'resis ;lad cO ~l ccms. Jnli nmlholl can h' r~ lcascd and exchanged I cory. sqllurcly Into lhe compelltl ve camp. anu a Opl II strategy w lIC 1 may Je to
Ilwt \ ill lidp III provide inSights hoth wnys :lIlcl to cslublJsh mpport between Ihe 11lilke sl ighl conCeSSIOns
. 'U1 Of'(.Ier 10 gU Il1
' J'ur more sub ' I d t
stnn llQ :J van ages.
Ilegotiators, which can also be helpful. . .. n individual strategy will be affected by ;1 Ilumber of nlctors, inciliding the 4·-05R
4 053 The more parties arc ablc to progress then' negotIatIOns, usually the greater the following:
momentum there is to complete the remaining aspects: there is more to lose by
letting a potential agreement slip the closer one gets to resolution. The negotiating 1Il0dcl followed by the negotiator: a competitive approach
4- 054 Negotiators should also be aware of the power of symbolism that can disrupt will give rise to a different strategy from a problem-solving approach :
settlements as they appear to be reaching conclusion. Sometimes symbolic issues If both (or all) adopt a co-operative approach, then thc strategy is
need to be re.olved by symboli s() luti~)ns, Th~ power of words emd physica l likely to be relatively open and creative, seeking joint gains and the
things which are used to represent deep~r Jll cllli ngs ror negotiators may have a most effective outcome for alL If the approach is competitive, the
profound of e l on how Ihey function and mak de isions. A word or imago is strategy is likely to include withholding information and lack of
symbolic. ymbolism muy e merge in many contentious situations. should be co-operation, manipulating and manoeuvring, scoring points, and
taken seriously nnd where nece.~sary negot iatofl> should aUell1pl to reach solutions seeking ways to achieve a better result than the opponent.
thul re ognis' 0)' power (albeit sometimes di 'proportiomltc) Lhelr cach pOTty has If, however, one negotiator adopts a competitive approach while the
invested in the issue. So, Ii r exall1[lle, appar ntly lrivial issues may sometimes other is co-operative, the co-operative ncgotiator will need to adapt
arise al Ihe ' nd of a success ful negotialj n, with the potential to disrupt his or her strategy to accommodate this situation. This may require
agreement, I'his may symbo li ally r present I each party who was right and who changing to a competitive mode or declining to negotiate. However a
was wrong, so each holds out for their position to be adopted. Solutions may need better response tends to involve maintenance of a strong, principled
to respect the symbolic power attached to them by both parties and may often approach which is tough in substance but which keeps the
need to be creative and multi-layered. possibilities for co-operation open, and continues to seek outcomes
4-055 Symbolic solutions may be illuslrated by Lbo igniucancc placed on which work for both pmties. 42
acknowledgments and apo logies. for examp le in negligence cases, and the The relative power bases of the palties: this is dealt with below.
imporlance that may be placed on forms of r stilutioll where the primulY The culture within which the negotiator is operating and the values of the
bjecLive i not necessari ly just the recovery of money- though symbolie acts negotiators and their principals.
lUay need to 'omplen ent and 110t ne es arily replace unUllcia l compensation, In The aims, aspirations and underlying needs of the principals and the
some cases, symbolic restitution may for example be achieved by an agreed emotional factors underlying the issues.
payment to a party's nominated charity or the wording of an agreed public The personalities and psychological make-up of the negotiators, the extent
statement. of their mandate and authority, their own private agendas, the skills which
each uses, and the perceptions which each has of the personalities and
aspirations of the other side.
SKILLS, STRATEGIES AND STYLE
4-056 Negotiation skills refer to the adeptness of the negotiator and include techniques
and methods for dealing with situations as they arise; these may be learned or
intuitive, Strategies refer more specifically to the actual approaches and tactics
that a negotiator may employ in order to achieve the required end. Style refers to
the way in which a negotiator presents himself or herself, and generally depends
upon individual personality and attributes such as personal authority, humour,
flair and demeanour.

~I Murray, Rau and Sherman, Processes q( Dispute Resolution: The Role ofLal1~/crs (1"n.19).
4()See the section "Perceptions and Psychology" below. See also Henry Brown, Neil Dawson and 42 See the discussioll above, and see also eh.! 8 of J. H. WilkinsOIl, D()novan Leisure Newton alld
Brenda McHugh's Psychology, Emotion and Intuition in Work Relationships: The /-lead, /-Ieart and Irvine ADR Practice Book (New York: Wiley Law Publications, 1990) entitled " EITectivc
Gill Professiollal (Routledge, 2018). Negotiation" by Gerald R. Williams.

56 57
 NI ~ (jOlIAI'I()N C'lll:llIIU':, CfI ·: NDI ·: I{ ANI) VAl IJl ·:S

POWER, CULrURE AND (JENDER CULTURI ~ , Cil i NI)I ~ R ANI) VALUES

Power",J These factors maya ffecl negutiation. 4 065

Cu/flll'e may relate lo a number or di ITCI eJlt aspects, Ill]' example
4-059 Power may exist in different forms including: the relationship between the
parties, hierarchical structure and patterns of behaviour; relative economic and there is the cultme of the coulltry within which lhe parties arc operating;
financial CirClll1lstcHlces; status and authority; relative prospects of successfully there will be cultural differences where negotiations arc carried out across
litigating the issues; greater access to information; or the power to harm the other countries;
side or damage their interests. local cultural differences or religious or other ethical factors may influence
4- 060 Power may also, however, be less obvious, and could for example reside in a negotiatiol1s·1\
morally strong (even if legally doubtful) position; the ability to withhold there may be a cu ltme in the industry or field of work in which the dispute
co-operation; the ability to inflict damage 011 another through damaging oneself arises.
(as where a debtor goes into bankruptcy). There is even the power of
inationality-the possibility that someone will act unpredictably and irrationally In an increasingly complex and diverse world, an effective negotiator will need to
with unceltain effects and consequences. appreciate the illnuence or
cultural diversity on the course and outcome of any
4-061 Although power may be real, it may also be blurred by the perceptions which negotilltionli anti to lrnnslut . uch understanding into a practical strategy.
parties have of their own power and the power of the other side, neither of which Much has been written ab ul cultural diversity in negotiation and mediation. 45 4-066
may necessarily be accurate. Power is not a static concept and may change, for Certainly, flexibility and a non-judgmental approach are requircd, and an ability
example where relationships change or where one side's vulnerability to adverse to obtain the acceptance of the parties in the process; the negotiator needs to be
publicity may lessen, which in turn may weaken the other side's power basco alive to the assumptions being made by the patties and their respective
4-062 In negotiation, parties may use their power directly, in the form of an actual or perceptions of fairness; and an avoidance of stereotypical responses is essential.
implied threat, or indirectly merely by allowing the reality of the respective
power bases to be understood. Where power vests wholly or substantially in one Gender
party, others may capitulate, or may decide to withdraw from the negotiations.
Some may try to work out the best outcome achievable, recognising the other's Gender in relation both to the parties and to their negotiators may influence 4-067
power. negotiations.
4-063 However, it is unusual for all the power to be on one side and none on the Some common images and perceptions of men and women as negotiators
other. More commonly, even if one side may appear to be more powerful than the reflect the gender stereotypes of society. For example, men arc perceived as
other, there may be balancing forces and consequences flowing from the exercise tougher and more competitive, women as more concerned and co-operative.
of power which make it necessary for power to be used with some These stereotypes have been under challenge, and one interpretation of some of
circumspection. the studies on the subject would suggest that these perceptions of gender
4-064 A negotiator will need to understand the realities of his or her own power, differences may be a factor of power and status differentials rather than an effect
strengths and weaknesses as well as those of the other side, and will be guided by of gender distinetions. 4 !i
these in fonnulating a strategy for the conduct of the negotiations. To redress the
power imbalance a negotiator might want to think about being accompanied and
supported by another person, possibly a legal advisor, at the negotiation. ,. Rack has highlighted this in relation to mediations conducted between Latino and white parties.
Latino culture embues a strong notion of fai1'l1ess which means that Latino bargaining begins with a
fair otTer. This opens the parties to disadvantageous negotiation: C Rack, Latino Anglo Bargaining:
ClIltlire. Stl'llctllre and Choice in COllrt Mediatioll (New York & London: Routledge, 2006) .
•, See, for example, Michelle Lel3aron's excellent article: "CultuJe-l3ased Negotiation Styles" in G.
Burgess ancl H. Burgess (eds), Beyolld Intractability. COllflict Research ConsortiulII (U. of' Colorado,
2003). Also available at: hllp:lllVl1'H'.beyolldilltraclabilily.orglessaylntlture-lIegolialion [accessed II
May 2018]; John Paul Lederach, Preparillg jar Peace: COIl/lict T/,(/II~f'orll/atioll Across Cliitures (New
.) An appreciation of power issues is crucial to effective negotiation and all processes involving York: Syracuse University Press, 1996); Michele J. Gelfand and Jeanne M. Brett (eds), Tire Handbook
negotiation. See Murray, Rau and Shennan, Processes of'Disfillle Resoluti01l: Tire Role of Lawyers oj'Negotiation and Cultllre (Calitornia: Stanford University Press, 2004); and some negotiation stories
(1989), pp.2 I2-220; S. Goldberg, E. Green and F. Sander, Displlle Resolutioll (Boston: Liltle, Brown, across cultures in Guy Olivier Faure, How People Negotiate: Resolving Displltes ill Difj'erelll CII/lllres
1985), pp.24-J3; G. Chornenki's chapter "Mediating Commercial Disputes: Exchanging 'Power (Advances in Group Decision and Negotiation) (The Netherlands: Springer (fonnerly Kluwer
over' tor 'Power with'" in 1. Macfarlane, Rethillkillg Disputes: tire Mediatioll Altemative (London: Academic Publishers), 2003).
Cavendish Publishing, 1997); De Bono, COllf/iets: A Betler Way 10 Resolve Them (London: Penguin 40 Carol Watson in SPIDR "Beyond Borders" 1991 Proceedings, 19th Annual Conference, An

Books, 1986), pp.148-152; L. Parkinson, Family Mediatioll, 3rd edn (Bristol: Jordan Publishing, Examillatioll of the Impact of' Gellder alld POII'er on Mallagers' Negotiation Behaviour and
2014), Ch. II . Olltcomes: Implicatiollsfor ADR Pmctilioners.

58 59
 NEGOT1ArION GOOI) FAITII IN NEcrOTII\1'I0N

4--068 Nevertheless, the fact may rcmain that for whatcvcJ socio!o?ical, personal Or aire 'I I1cgotiuljll~S . ~lIrI1lY, Rnll ilm! ShCI111illf,rt 11Ighllghl IIt~t Ihis, illv l~es
o lher ""i 'ons, [II cUlToron t Sf,;XCS muy SO~lICIIIIll:S have r.;;~1 d,lne.rcnn:s of pOWel bjlllltiol1~ 01 variable. such ns self-esteem, pl:rsumll drive, I'Isk-luklllg
in tile IIcgOliMing fCll1JITI. rhJS CUll b' J'f1l1K'IJlarly rcll.want 111 l<UllIly and domestIC com ensitics • dggrc~slvcness,
. to Iel'UllCe I''01' um'lgutly
t" .1
anu cun ('rOlllullon,
, .1
lillu
dUiputcs, wher~ pattern or bd\u\,jl~~r hdlVeen a man and II wonWll mlly result in pJ'l) P '.,
rhien! fleXIbIlity,
disparilies ofp<>wor and 1I10UCIlCC: . . C Parties tlHty also lise psycho logical fuel I'S and ploys in the WHy they Ilcgolinlc, 4-074
4--069 A . ludy of the methodology o( cOllversHtJOn ana lYsIs, willi mediators from n
SUlItcgies ure 10 Ilome extcnt based on a judgmcnt as Lo how lhc olher siue will
psycho-sociul ba~kb'rouod, cl)flcludcc/ that women arc neither genel'iea lJ
reAct to a giwn on"r, respOlls' or III vCllIon!. This necessitates SOlne ability 10
IIdvant.a ged nor dlsadvanlog.:(] by the process o/' mediation '1lthougl rt Y
.. h . • • 1 e am nJcl:.luntllhe other slue lind (heir own mo(ivulions und as[liration~, and 10 have
aspects of It may seem to ave a more nlasculJ(1c character WJlt' ' 11 I' .
. '. '
pre-suppose that thiS may potentIally dIlwdvantagc WOOlcn j' n g·re ~ I M d'
c or some may ~OJllC insights into Iheir psycho I gy.~1
.nel.l e lotors Ii Addilionnlly, parties muy have strong feelings ubou l lhe issues or abuut Ihe 4-075
themselves were treated as gender-neutml , except occasion'lll ' II ' "
hostile interactional moves.4X . < y 10 Ie context of people wilh whom Uley fire in dispute, whether this relates to personal and family
4-070 Babcock and Laschever's thesis is that women need t . issues or i il and commercial disputes,52 Negotiators may need to seek ways in
II lC' en Ilall
. f ' , 0 negotiate more and that which these can be expressed without damaging the negotiating process. Fisher
emen t ncgotwung p rforrnanee is es t' It:. ,
· d '
thtoes ' sen 1a lor WOlllon rloweve ' and Shapiro suggest that such strong negative emotions may be dealt with by
nol Irans late 11110 tin !:tssc 'ment of the relati ..'. I,
orlhe, exes-t hough it may indicate that women . ve n~gOllalll1g m
CUveness being prepared, which they consider involves: taking one's emotional tempera-
into negolialjon follow.ing an initial ollor. me less lIkely lhan lllell to enter ture, and having an emergency plan in order to soothe strong negative emotions,
to diagnose the triggers of one's emotions and to act with a clear purpose in
Values mind. 53

4-071 Values are concerned with individuul ideals and . '

patties and their negotiators hold is like l < t . tl pI In IpJes, .Tl~e va lues which GOOD FAITH IN NEGOTIATION
ext nL A party who has dec . ., y 0 I? lien C nCgOlrallons to a certain
dmcrent appl'O<lcJl than a J a)~,~~gl~~ ~r e~l~cal convieli~~ls may weU take a Theoretical Principles
and to negotiations. tJ'ougly held viewseasnd(l l() )U~I t~omJlcbtillve, upproach to life
·
dlSpute , , COil VI Ions a out the sub ', t J' tJ
may also make l:1 part less likel . ,. • . . ~ec 0 IC Within common law jurisdictions, there are no fixed lUles to suggest that 4-076
approach to the luatt ' . Y. Y t balgalll liMn a g lve-and-t<lke negotiations should be entered into or conducted in good faith, Expectations
CI. ometllncs LI' may be nece t '
issues are intractab ly bound up wilh ' .. " I ' ssary 0 eXaDlInC whcl'llCr the about maintaining ethical standards are the closest in application and this will be
be very djfiieult or wheLhe th , Pll~CIP es, m whlcb event negotiation might dealt with in the context of mediation elsewhere in the book. 54 Goldberg et al
leave the princip'les intact b~t tl'::;j~:~es n:;~~:~~ o'om U1C pl'iJlciplcs so a, to make the point that within legal negotiations, the question is not whether a
negotiator may mislead an opponent, but on what subjects and by what means.
They go on to claim that it is difficult to obtain general agreement on ethical
PERCEPTIONS AND PSYCHOLOGY standards for answering such questions and equally difficult, in view of privacy
in which most negotiations are conducted, to enforce agreed-upon standards. 55
4-072
:rJ(Jl~'CS"C'Pli~ns may have a fundamental effc ( on the attitudes ofnegotiatinn parti'e
" may ur may not have an b ' . . I' , a,
OWn effect rrl < y ,DSIS lI1, lea Ity, but theu' mere existence has its
. 1e concept of reahty-tostll1g I. h " ' 50 In Processes o/Dispute Resolution: The Role of La Hyers (1989), p.221, Murray, Rau and Shennan
tllird-pnrty intervenlion is to I I ' ,~lIe I::l. one of the li.ulctions of offer some valuable insights into the negotiating and litigation styles of lawyers, and how some may
facts ' 1'1 D ' th . . , : p people revIew theu' perceptions again t the tend to make assumptions and unwittingly practise self-deception, which can sometimes result in their
, unng e course of bJiatcralnegotial' " '/ '
may n cd to be pcrtionned by th ' . Ions <l SIm I ar realrty~ tesli t1g ro le predicting their clients' prospects of success more favourably than warranted.
4-073 . negotiators. 51 Lax and Sebenius, The Manager as Negotiator: Bmgaining for Co-operation and Competitive
P,~:~ch%git.:(jl Gild elJloriollal /(lCIOI:~ may also influ . . Gaill (1986), p.86. See also Henry Brown, Neil Dawson and Brenda McHugh's Psychology, Emotion
Negotiators hou ld be awa re of thc' extent to which individu:I~:rs~~!~~t:~~:~ and Intuition in Work Relationships: The Head, Heart and Gut PIV{essional (Routledge, 2018).
52 See 'The myth of rationality in civil and commercial disputes" in eh.1 O.

53 Roger Fisher and Daniel Shapiro, Building Agreement: Using Emotions as you Negotiate (London,

" ee . It. !6: I!lhics und va lues, (airness aud JOwer III f " . , Random House. 2007), p,168.
domesUc vl(llenc.:o lind abuse" Li ' I' 'k' ( ' . so 1. 1f Issues ruouncl mcd lSl ll1g w ilh 54 See Ch.16 for more detailed discussion on ethical standards when engaging in mediation,
M 1" 3 sa ar rnson addresses rhe is lie or g.... .
4.11< ((1//01/ , , rd cdll, Fa mily Law, (Urislof: JOl'dnn Pllblis hlng, 2()1 4) cn"er rssues III F(/mi~I' " Stephen B. Goldberg, Frank E. Sander, Nancy H. Rogers and Sarah R. Cole, Dispute Resolution:
Sec R. DlIlgwa fl, D. n:mbmch 111'1<.1 L. R " . . , . . , Negotiation, Mediation alld Other PlVcesses (Aspen: Wolters Kluwer Law & Business, 2014). See
!.~998 ) 15(4) MediatlQI/ QII(trlt!riy 277. uggcronc Gender lind Inleraclioll HI Divo rce Mudiation" also James White, "Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation" (1980) Am.
Fo r fiu111cr cx plnnalions ot'rcalily lesting, ec Its 10, II olld 19. B. Found. Research J. 926, 926-935,938, on the difficulty of proposing acceptable rules concerning
truthfulness in negotiation, also available in Goldberg et aI, at pp.70-71.

60
61
 NH iOJI I \TIO N (i()()I) 1;;\lTIIIN NI':(iOIIAII()i"!

Lt.·gal Principles " I OJ' tlte :lvoid:II11T or dOIIIlI , Wl' \~'()\"d "dd Ihal ,wc' wou ld IV,:I'C il ,IJl:lICnal, nl1p~,y iI
.
h..~lln 1) lei' 1 I') SI<y
" I'),Ialilld
.. 'lei wllh good (:l111i III Ihl' pl'rIOIIll<lllu.: 01 Ihls lOIlII<lCt.
I

4- 077 III the context of dispute resolution through lh~ pl'()~ e:;s of ncg?~iatioll III Ihe
UK 11111 it is Ilot 1ll:ltl'l'iill",'"
then: is 110 spcci fic legal duty (0 l1c-gll Llall' 111 good I<lIth and OVCIiIII
Consequcntly, thc concept of liability (or a fa ilure LI) cntcr into pre-contract 11 civil law syskllls th(;l'(; arc exp["(;ss statulory requir(;l1lcnls of good, f~lith and 4 (182
negotiations in good I'aith J'emaiw; relativel ulldevclop d in Ihe English lega l [ I en J'I Jl gT ,SllCJl c,
f' If( ' IS 'Ire
, found in lile Swiss ,Inri (;erl11[\11 ('odes and there, IS also , the
sys[em, Thc situation is slightly morc c../cyelopcd ( 11 Ihe Continent howe r, " [ I ' '11/1)(1 ill COllil'u/iclldo whieh docs not have a statutory /olllldatlon,
COllcep 0 ( " ' , 'I T
' ,[" 11(1 commentators have deVeloped thiS notion hy way 0/ diM ogy to
Good faith in ADR CoUl ~ d .. , , " , ,. ' " , .' r
' J'IVI(
Inc 'I lI,1'I ,st'ltulory
c 11l'OVISIOllS, According to, tillS doctlll1e,
, the mClc. IJ1ltlc.ltlon
I ' 0I
Ilcg ot'Ja t',llS
I( ,
cl'eates, "'I 11rc-contnlctual
, "
relatIOnship as, "a ' matter of law W lIC 1
4-078 A further issue to consider is whethcr parties we a uuty to negotiate 111 good fili(h ' 1 loses on lhe negotwtlllg partlcs a rcclprocal duty oj edl e, ,
with aile another, In this regard, a funuamcntal difference of aprroach appears 111 'The following case, in which the German court ~ranted a culpa II/ 4 - 083
hetween the cOlllmon Jaw systcms (which ill ludcs the UK, the U , and most (ontra / /('II[ If) "/' ~,11'111 , l'llustl"lics
, c", Ihe doctrine , The owner of an apartment
• • , . and, a
Commonwealth countries), and the civil law sytems (such as France, G rmany, 'as lcctive tenant were ncgotIatll1g a lease agreement. The ownel gdve thc tendlll
Switzerland and othcr European countries). ivil law system arc traditionally ~~:c 'i~llpresSion thai the agreement would detil~itely
be executed, On the strengtl~
readier than common law systems 10 impose pre-contra 'hlOl liability up n parti of that, the prospective tenant terminated IllS current lease, Later, the owncl,
for a failure to negotiate and transact in good Uti(J1. 111decd in civil law systems refused without reasonable cause to rent the apartment. The court held the ownci
Lher j, an overriding princ iple of good lililh ill tlte formation and perfonmtnce or was liable for the prospective tenant's damages, , ,
contract , 'ommon law systems, 011 lhe oUlcr hond, have traditiona lly b ell Under English law, remedies in a similar case 111Ight be found by applYll1g 4-084
reluclant t impose a dUly of good failh on negotiating parties. save wher u doctrines of misreprt:scntation or promissOlY estoPI~el, (,()
specilic (jdll iary r~1 tionship eX ists, Under both verman and French law, there IS a duty not to brcak off 4- 085
4-079
In England and Wales good faith and fair dealing have so far played a limited Otiations without reasonable cause if one party has led the other party to
role ill English onll1lctlaw. In fact, the House of Lords, in Waljord v Miles, has neg that the contract will be concluded in any event and I'f tI
expect lere'IS no reason t 0
gone so far as to say that: withdraw,

"tlte concept of II duty to corry on n gotiutions in g od faith is inherently n,"j)lIgn3nl Good/aith in the ADR context
10 thc ndvcl'sarinl position of llle panies whcn involved in negoliations. Each Pllrty
to lll(! uegotia.uons is entilled to pursue his (or bel') own imerost. so long as ho
The decision of Walj()rd v Miles, in which the cO~lcept ~~ good fait~ w~s 4-086
avoids IUllking misrepres motions, To Ild VilnCe lhllt interes t he mUst be em itled , If he
thjllk~ it opproprillte, to throat II to withdraw from further negot iations or to described as "inherently repugnant" to the adversanal pOSItIOn of parties III
withdrfll in fIlC!, In the hope d181 til opp sire parly moy seek t reopen lhe negotiation, was made in the adversarial context.!" However, the concept of a
negotiat ions by ofl' ring him improved terms." 6 contract negotiation has been described as:
4-0HO
Even though there have not been any ubsequent UK decisions 5ince Waljord "a battle of wits where each trics to manoeuvre the other into an unfavourablc
a/ld Miles (which was made in an advers8Jiai and not private or conseosual position, alone found in common law countries, seems dceply unattractive III the
late twentieth century, "62
context)57 specifically con eming lhe go d faith issue withjn th context ofADR
(see below), the "good faith" rrinciple considered in that ca ' Ita been revisited.
For example in able & Wirel s PIc 11 IBM UJlifed Ki1/gdom Ltd SR eourl ADR processes arc designed to function not only in a co-operative 4-087
proceedings were stayed to enable ADR to be pursued, in acc rdance with the environment but also within an adversarial context. Consequently, they may be
agreement between the parties,
5" Philips Hieclrolliqll(, Grand PlIbiie SA v British Sky Broadcasling lJd [1995] EM,L. R, 472 CA
Duty to perform in good faith? (Civ Div), ,
-'IPr 11I1Sl;Ory eslOppc/ ih un \! Illiwllic loctrine which Jlrel'\!JlI~ <I puny from gO.lllg b~lck 0 11 a prollllsC
4-081 which \VIIS nOlllpported by conSldCl'3lio n and is 1I1usiluiell by Ihe lending case 01 Cellll'ttl I.ondoll
No such duty bas been impOlied into English law, but the remarks of Sir Thomas Propel'fl l TrIlJI LId v High 7}w \ I ((/ [I Q47] K,B. 130, . ,
Bingham MR (as he then was) in the case of Philips Electrol1ique Grand Public 01 1.ord Ackllcr in Wa/f(JIY/I'Miles [1992]2 A . 128; Ii C)'J2] 2 \ ,l..R 174 ilL ut 18 1 The dl~tlncl lOJl
SA 11 British Sky Broadcasting Ltd arc significant. He said: nbol.illhc cl)nlexl j~ lllnl if purl ic.~ are ncgutjoling Ihe sclJlelllent Of'1I displJlc where lhere IS 0, ~8se
pcnJillg lind Ihe Ilcllotil1li(lns orc " odvcrsarl(ll", Lord Ackocr'H oOrlln'lcnls ~nn b~ Ui~~crst~lOd ; I ul II Ihe
50 Lord Ackner ill Wal/olll v Miles [1992J 2 A.c. 128; [1992J 2 w.L. R, 174 HL at 181 , parties havc ngn:cd In go inlo l ilil<tiation und, hn,ve chuscn n "probl~~l.SolvlHg or JI1~crcst-bll~c~,
57 See below: "Good taith in the ADR contexC', conlex t, and huve agn.:cd \0 negoliaTe i n good tilli ll II1 l h~t COI1lCl(I, Ih ~n III~ ~I UCSllollllblC us 10 WhCllicl
5X [2002J EWHC 2059 (Comm), Lord Acknor WII~ righl 1(1 rcfol 10 good f!li lh Icing rcpul,lnont II) 111('l11' pOSI \lOn~,
0' Richard B Mowl'oy 0 " "Gond fR ilh" 771(' COlllm l'l'ct(I / UIlI"I'I', July/A ugust 1995.

62
63
 1111;, NIHII~I\I 1 \j1'(i()'JIAII()i'lI~()I,1
NI-·~(j()'lIAII()N

-l.·'. ' 11" u.:golJ(l ling ill a hostih.: lujvcrs<lrtul Illude 01' a he lISl (If vannllS l-otrukglCs lIJ1d skJlI~.'d rh~ pl'al~\l l lllJl~1 c:JIl h, 'lp the P,IIUCS 10
used whe ther pU I Ie!' • ~ I vc "WHY froll1 COlin lei amI Ill lo a crcatlvc IIlld construcllvl. (nlJ llc ur 1l 11J1tI, tl)
. II -tn-so lving Illode. However, most conscnsua l ,1\ DR processes
co-opcrali vO [Jm) c . . . . . d' . I IJlll I'll 'Ill thc ag'lIoa. 10 cllmm uni<.:a lc cffuctlvc1y. 10 gcnemt ' anti e"pt( rc
CCU by ril l (.lbli gllh oll 011 pmil Clpul1ts to IlCgo tllllc 111 goo Ja lt 1.
WO IJ Jd I)~ en I IUI I . • • . IInp <.: 1 " .
'1 . · 1 (lulJ 11m impl y u duly on p ill U\.:s to act llglu ns l Lhclr be:.! Illtcres ts.', but . I lIud to I'C examine th il perc ption~ thm ug h I'calt t testing. III til ' M.' and
1 lIS:' 1 .•• d . fl o pll Ol ::. . .. I
mlhe r II dul y to c Ilduc t JlcgotJatl(ms III a proper an contmctlvc monner, 1cre o lher ways, the practiti oner helps the m to engage III cons truell ve din ogue
11111 11 Y
would <llso seem to bc a distinction bctwecn two different good t;lith nspccts . Thc d ncgul illiions. itllllatc1y. II IS the pm't lcs W 10 negotUl1C WI onc ano IIl eI... II1C
" • . I . 'tb
one concept imports good l'<tith principles into the process, by attempting in good Ull -(itloller simply nets as a sk Jllcd faci litatOl' of those nego ti ations, and neithe r
p fllC - . . .
faith to arrivc at a scttlement agrecmcnt, cvcn if thc ncgotiations arc conducted e nt ('01 either. nor !1 qmls l-pnnc lpa l.
un ag
with individual self,intcrest. This at lcast would bc required. The other concept
would import principles of good faith into the substance of thc ncgotiations .
4-088 The question arises as to whether W()(f{Jrd v Milt's would havc been decidcd in
the same way if it had ariscn in the context of a consensual ADR process. The
distinction would be that parties would have chosen a non-aclvcrsarial contcxt for
their negotiations. In such cvcnt, it would bc arguablc that any good faith
provision in thcir contract should be respected and enforced. Of coursc, even in a
n n-adversarial , consensual process, parties in uispute re tain separate interests.
Each s till aim. to negotiate the oulcolll mo t Iiwourablc to him or her elf, even
if' Ihi. lIlay be ttrrivcd at through a principled and prob.l cm-solving approach.
IIence the re couk! \II It be a counter-argument that palti s remain engaged in a
PI' 'ess Ihut respects their sep~u'ate interests even wher they have chosen a
non-advcrsarial forum to try to rcsolve the dispute.
4- 089 Any changes to the principles enunciated by Lord Ackner may well have to be
introduced and implemented as part of a legislative programme, though judicial
decisions could Icad the way for this.

THE NEUTRAL NEGOTIATION ROLE

4-090 The principles of negotiation outlined in this chapter apply in relation to bilateral
or multilateral negotiations. They are not specifically geared to implementation
through a neutral role. They are, however, also relevant to a oeutral wh needs t
understand Ole issues outlined in this chapter and in particular to appre jute lh'
theories, practice, beneDls and shortcomings of problem- o lving negotiation . An
ADR neutral will need to draw on his or her own ncgotiating experience and
skills to assist Ule partie wi th lheir nogotiations. This should be don in a neutml
and ethical way, without bias towards either party and without unduly influencing
the pat1ies in any way which is not expressly or implicitly envisaged and agreed
by the ground-rules for the process.
4-091 Some ADR practitioners may initially be uncel1ain how to convert their
negotiating exp rien e and skWs into a neutral role. When conducting separate
meetings, do they negotiate with each side as if representing the other? Or do
they hold back because tlley are in a privileged position and have some idea
where the respective strengths and weaknesses lie? This uncertainty may have a
paralysing effect and it is vital for an ADR practitioner to be comfortable in the
neutral role of facilitating the pat1ies' negotiations without becoming the
champion of either.
4- 092 An impat1ial ADR practitioner has various roles and functions, which include
managing the process as well as facilitating the negotiations which may involve
"' See C h.14.

64 65