A CONTINUUM OF ALTERNATIVE PROCESSES
Arbitration
Private, parties get to choose the arbitrator. In the US insurance industry, an arbitration can argue for
the party that chose them, they are asked to disclose anything that might call into question their
impartiality.
Decisions are final and can’t be appealed. Recognition provided for under the NYC. Local law also
recognises international arbitration law.
Institutionalisation of arbitration has made it slower, meaning delays and excessive costs for parties.
Emergency arbitration used in times of emergency. Decision will stand until tribunal is formed.
Decision made by the EA is not final/binding.
Med-arb
Same person acts as mediator and arbitrator in the same dispute.
Decision-makers are not supposed to have private communication with either party without the other.
But this happens during the mediation phase so before entering arbitration phase, mediator discloses
all info said in private or mediator states he won’t rely on anything shared privately. Third possibility
is that parties waive their right to complain should the arbitrator use the private info.
If parties know info will be shared later, they may not disclose. This system may make mediation less
effective because of risks involved. This is not safe if you want to enforce arbitral award.
Window for settlement given before arbitration starts. Arbitrators also give framework of process to
parties.
Expert determination
Parties to a contract have particular dispute on a specific issue within the contract. Dispute is referred
to an expert in the area for determination e.g. price adjustment.
Parties need to be clear on expert’s remit. Expert’s determination is binding and depends on which
law governs the contract.
Early neutral evaluation
Evaluation of a party’s case. The evaluator does this on the basis of the material presented on the
possible outcome of the case. It doesn’t bind parties but advises on strength of their case.
Helps promote settlement depending on outcome of evaluation. It may lead to settlement or entrench
party’s views even further.
Adjudication
Similar to expert determination. Popular in construction projects that need quick decision to continue
project.
Decision is interim, and parties can challenge it later or through other processes. But decisions are
rarely re-litigated because parties accept them.
