Advanced Alternative Dispute Resolution and Mediation

Introduction to Dispute Resolution

• Typical Causes of commercial disputes
• Common legal remedies from court action
• Do we want an enforceable court judgment?
• Litigation strengths and weaknesses
• Considering ADR contract mechanisms - tiered
• Jurisdiction and applicable law issues
• Dispute case studies and exercises

Arbitration

• Arbitration principles
• When is arbitration appropriate?
• Selecting and appointing the arbitrator and the forum
• Strengths and weaknesses of arbitration
• What happens if we lose?
• Recognition and enforcement of arbitration
• Awards
• Arbitration variants
• Pendulum (baseball) arbitration
• Class exercise: Preparing for arbitration

Negotiating Solutions to Disputes

• Conflict management styles
• Distributive and integrative negotiation
• Building relationships to improve success
• Negotiation phases
• Using "the third side" in negotiation
• Class exercise: Negotiation preparation and role play

Mediation

• Mediation fundamentals
• Working with neutral intermediaries
• Facilitative vs Evaluative mediation approaches
• Appointing and Working with a mediator
• Process and Stages of a mediation
• Reaching a settlement agreement
• Practical arrangements

Other Dispute Resolution Mechanisms

• What are the other choices and when might we use them?
• Conciliation
• Settlement conference
• Expert determination
• Early Neutral evaluation
• Dispute Review Boards
• Med/Arb
• Ombudsman

Mediation Agreements and Other Formalities

• Contractual commitments to mediate
• ADR Contract Clauses
• The Mediation Agreement
• Important Clauses in the agreement
• Establishing the rules of the mediation
• "Without prejudice" status of discussions
• Confidentiality
• Terminating the agreement
• Fees and expenses
• Settlement Agreements
• Staying future proceedings

Mediation Processes

• Structuring a mediation process
• Preparation phase
• Opening joint sessions
• Caucus meetings in private
• The Conclusion phase
• Alternative mediation processes
• Formalizing the settlement agreement
• After the mediation
• Class exercise: Mediating a dispute

Developing Mediation Skills

• Building trust and rapport
• Active listening
• Identifying common interests
• Engaging reluctant participants
• Facilitating co-operative problem-solving
• behaviors
• Dealing with deadlock
• Helping both sides get a win-win
• Class exercise

Mediation Scenarios

• Choosing the right mediator for the job
• Duties of the mediator and professional advisers
• Mediation scenarios
• Commercial disputes
• Domestic / Family disputes
• Workplace disputes
• Online mediation
• Beyond mediation - next steps and alternatives

TRAINING METHODOLOGY

The training methodology combines lectures, discussions, group exercises and illustrations. Participants will gain both theoretical and practical knowledge of the topics. The emphasis is on the practical application of the topics and as a result participant will go back to the workplace with both the ability and the confidence to apply the techniques learned to their duties.