The enforceability of mediation clauses: A critical analysis of English case law

2021 ◽  
pp. 205556362110174
Author(s):  
Markus Petsche
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Critical Analysis ◽  
Case Law ◽  
Judicial Discretion ◽  
Mediation Agreement

This article shows that the English case law on the enforceability of mediation clauses presents a number of flaws. First, and most importantly, English courts generally fail to distinguish between the positive and the negative obligations created by such clauses. As a result, they wrongly apply the certainty requirement to the former, rather than the latter, which leads to frequent refusals to enforce mediation clauses in situations where enforcement should be granted. These decisions discourage parties from agreeing to multi-tier dispute resolution clauses providing for preliminary mediation, thus undermining the general policy favouring the use of alternative dispute resolution (ADR) mechanisms. Moreover, judicial discretion in deciding whether to give effect to a valid mediation agreement is unjustified and exercised on the basis of questionable considerations.

scholarly journals ANÁLISIS CRÍTICO DE LA LEY DE MEDIOS ALTERNATIVOS PARA LA SOLUCIÓN DE CONFLICTOS DEL ESTADO DE VERACRUZ. (CRITICAL ANALYSIS FOR THE ALTERNATIVE DISPUTE RESOLUTION LAW FOR THE FREE AND SOVEREIGN STATE OF VERACRUZ)

2019 ◽  
pp. 110-144
Author(s):  
María Elisa Matilde Ceballos Díaz
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Critical Analysis ◽  
Sovereign State

El presente trabajo realiza un análisis crítico a la Ley de Medios Alternativos de Solución de Conflictos del Estado de Veracruz, con el fin de determinar si esta Ley, así como las instituciones creadas para su aplicación, cumplen con los mandatos establecidos en la Constitución Federal y en los Tratados Internacionales, principalmente que toda la población veracruzana puede acceder a estos procedimientos.

scholarly journals Party Autonomy

1999 ◽  
Vol 30 (1) ◽  
pp. 257
Author(s):  
Robin Cooke
Keyword(s):  
New Zealand ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Case Law ◽  
New Delhi ◽  
Party Autonomy ◽  
National Bank ◽  
Formative Experiences

This is an augmented version of a paper delivered at the International Centre for Alternative Dispute Resolution, New Delhi, in December 1998. Party autonomy describes the principle whereby the parties to a dispute have full autonomy when making their arbitration agreement. The author discusses the Arbitration and Conciliation Act 1996 of the Parliament of India, focusing on the principle of party autonomy. He describes his formative experiences to arbitration in cases like Wellington City v National Bank of New Zealand Properties Ltd, the Arbitration and Conciliation Act itself, Indian case law before the Arbitration and Conciliation Act, and a brief look at New Zealand's Arbitration Act 1996. 

scholarly journals ODREĐIVANJE VISINE NAKNADE ŠTETE U MEĐUNARODNOJ INVESTICIJSKOJ ARBITRAŽI S OBZIROM NA UTVRĐENU POVREDU I METODU IZRAČUNA

2021 ◽  
Vol 37 (2) ◽  
pp. 105-136
Author(s):  
Jadranka Osrečak
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Case Law ◽  
International Investment ◽  
Legal Issues ◽  
Investment Arbitration ◽  
Inclusive Approach ◽  
Arbitration Proceeding ◽  
Dispute Resolution Mechanism

International investment arbitration as an alternative dispute resolution mechanism for resolving disputes between foreign investors and host states is also a favourite dispute resolution for investors. It consist of three parts, all of which can be resolved separately. These are jurisdiction, merits and damages. Consequently, it is possible for a tribunal to render one, two or even three arbitral awards, depending on the tribunal decision to bifurcate/trifurcate the proceedings or not. This shows the complexity of each of the stages of the arbitration proceeding. The paper deals with the issue of reparation, specifically compensation for damage caused as the main form of reparation for damage. It gives an overview of the legal issues affecting the amount of awarded damages, the main methods for calculating damages, as well as the applicable case-law and statistics in relation to the legal issues and calculating methods. The paper argues that only a proactive and inclusive approach in respect to determining damages including a detailed fact analysis for legal qualification of the dispute and determination of the best damages assessment methods, can give satisfactory results.

Traditional Justice System as Alternative Dispute Resolution Under Article 159(2)(C) of the Constitution of Kenya, 2010

2021 ◽  
Vol 1 (1) ◽  
pp. 22-40
Author(s):  
Emily Kinama
Keyword(s):  
Comparative Analysis ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Justice System ◽  
Multidisciplinary Approach ◽  
Case Law ◽  
Criminal Proceedings ◽  
Justice Systems ◽  
Civil Cases ◽  
The Right

There are various forms of justice. It cannot be limited to legal justice. This paper explores the potential of traditional justice systems under the Constitution. It illustrates the need for a multidisciplinary approach in order to fully realise the right to access justice. Through a comparative analysis as well as case law, the paper demonstrates how alternative dispute resolution is not limited to civil cases, but can be applied to criminal proceedings. Challenges are pointed out and recommendations made on how to improve and effectively manage traditional justice system

16. Alternative dispute resolution

2020 ◽  
pp. 605-638
Author(s):  
Steve Wilson ◽  
Helen Rutherford ◽  
Tony Storey ◽  
Natalie Wortley ◽  
Birju Kotecha
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Case Law ◽  
The Cost ◽  
Do So

Alternative Dispute Resolution (ADR) describes any method of resolving legal disputes other than through litigation in the ordinary courts or tribunals. ADR includes methods such as arbitration, mediation, adjudication, conciliation, med-arb, and early neutral evaluation/expert determination. This chapter explains why ADR in general exists, its many advantages (compared to litigation) as well as its disadvantages, and the differences between the various forms of ADR. The chapter examines the case law over the last fifteen years on the ‘cost consequences’ of a failure by one party to a legal dispute to engage in ADR when presented with the opportunity to do so. The chapter considers whether ADR should ever be made compulsory and the extent to which the parties to a dispute, having agreed to resolve their dispute through ADR, can be compelled to honour that agreement.

18. Alternative dispute resolution

2018 ◽  
Author(s):  
Steve Wilson ◽  
Helen Rutherford ◽  
Tony Storey ◽  
Natalie Wortley
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Case Law ◽  
The Cost ◽  
Do So

Alternative Dispute Resolution (ADR) describes any method of resolving legal disputes other than through litigation in the ordinary courts or tribunals. ADR includes methods such as arbitration, mediation, adjudication, conciliation, med-arb, and early neutral evaluation/expert determination. This chapter explains why ADR in general exists, its many advantages (compared to litigation) as well as its disadvantages, and the differences between the various forms of ADR. The chapter examines the case law over the last fifteen years on the ‘cost consequences’ of a failure by one party to a legal dispute to engage in ADR when presented with the opportunity to do so. The chapter considers whether ADR should ever be made compulsory and the extent to which the parties to a dispute, having agreed to resolve their dispute through ADR, can be compelled to honour that agreement.

Labour Law

Japanese Law ◽  
2021 ◽  
pp. 405-430
Author(s):  
Hiroshi Oda
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Case Law ◽  
Contract Law ◽  
Second World War ◽  
World War ◽  
Labour Law ◽  
The Us ◽  
Second World

Basic labour laws were introduced into Japan after the Second World War from the US. A new law—Labour Contract Law—was enacted in 2007. This law more or less codifies the existing case law. A new alternative dispute resolution (ADR) system for employment disputes was introduced.

22 Alternative Dispute Resolution

2019 ◽  
Author(s):  
Brealey Mark ◽  
George Kyla
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Civil Procedure ◽  
Mediation Process ◽  
Cross Border ◽  
Practical Guidance ◽  
Mediation Agreement

This chapter examines the use of alternative dispute resolution (ADR) for resolving competition-related disputes. It first provides an overview of the benefits of mediation as a means of resolving competition disputes and how ADR is encouraged in competition litigation. It then considers the relevant ADR provisions in the Civil Procedure Rules 1998 (CPR) and in the Competition Appeal Tribunal (CAT) Rules, before discussing cross-border mediations and how disputes are mediated and regulated. It also offers practical guidance on when to mediate, choosing a mediator, the typical stages of a mediation process, the role of a mediation agreement, and the implications of mediation confidentiality. Finally, it explains the specific provisions relating to voluntary redress schemes, a form of ADR.

New legislative accents in the mediation procedure and legal principles of alternative dispute resolution

2022 ◽  
pp. 85-91
Author(s):  
V. V. Borodin ◽  
T. G. Furman
Keyword(s):  
Decision Making ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Mediation Process ◽  
Legal Principles ◽  
Federal Laws ◽  
Mediation Agreement ◽  
Independent Decision

The article analyzes the latest versions of federal laws that made changes to the mediation procedure — allowed judges to resign to perform the procedure of professional mediation; provided an opportunity to notarize a mediation agreement, giving force to an enforcement document; the procedure of «judicial reconciliation» appeared. It is proved that mediation in its essence is not the «activity» of professional intermediaries, mediators, but a «procedure», namely, a structured process that is an alternative dispute resolution technology. The legal principles of the mediation process are disclosed: voluntariness, confidentiality, neutrality, passionlessness and independence of the mediator, independent decision-making by the parties, equality of the parties.

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