Arbitration and Mediation in Commercial Disputes

The course focuses on two most popular alternative dispute resolution (ADR) mechanisms of resolving commercial cases. In recent years, arbitration and mediation have enjoyed unprecedented success on a global scale, and have largely replaced domestic litigation in the area of private disputes as professional, custom-tailored, flexible and time-efficient mechanisms. The course offers a highly practical opportunity to gain knowledge and acquire professional skills needed in international business environment.

The module is taught by experienced dispute resolution professionals, who combine high academic standards with a very practical approach to teaching. Course participants will have an opportunity to gain knowledge and practice their skills in a variety of individual and team exercises, including drafting arbitration and mediation clauses, as well as procedural documents; strategy building; negotiation sessions; and mock proceedings. The module includes a field trip to the Danish Institute of Arbitration and special guest visits of senior dispute resolution professionals.

The course acquaints participants with key characteristics of arbitration and mediation, and guides them through subsequent procedural stages of each of the mechanisms. Practical exercises will be conducted, regarding such issues as: selection of arbitrators/mediators; preparation for proceedings; conduct of hearings and presentation of evidence under different procedural standards; enforceability of awards and settlements.  

Both arbitration and mediation can be utilized as standalone dispute resolution processes. However, they can also be combined into sequential hybrid mechanisms in order to suit exact needs of the parties and demands of a specific case. The course will demonstrate how this can be successfully achieved, including such variations as: mediation in the form of a pre-arbitration dispute settlement process (as seen in the FIDIC construction contract conditions); Med-Arb (where the same mediation panel is turned into arbitration one, in case settlement is not achieved); and Arb-Med (where settlement attempt is made after arbitration proceedings were commenced).

The following main topics will be discussed:

• Introduction: the role of arbitration and mediation in commercial disputes

Part I: Arbitration

• Choosing to arbitrate: ad hoc and institutional arbitration. The role of arbitration venue and rules of procedure. Arbitration agreement.
• Arbitral tribunal: qualifications, appointment and powers
• Applicable law       
• Course of proceedings; evidence
• Arbitral awards: challenge, recognition, enforcement

Part II: Mediation

• Mediation agreement. Evaluative, facilitative and transformative mediation.
• Mediation Panel: qualifications, selection and appointment of mediators, scope of powers
• Conduct of the mediation process. Role of the panel and of the parties
• Settlement agreement and its legal effects. Enforcement (enforceability).

Part III: Hybrid Processes and Specialized Areas                                                        

• Mediation as a pre-arbitration process. Before the same or a different panel?
• Arb-med. Costs; limits of disclosure and cooperation by the parties; expertise and soft competences of arb-mediators and med-arbitrators
• Construction disputes and FIDIC standards
• Maritime arbitration

New trends in resolution of commercial cases