Third-party Dispute Resolution Services

If you want a third-party decisionmaker to provide an authoritative ruling on your dispute, but don’t want litigation, where can you turn? Arbitration, of course! But there is another way ... just ask the parties to yesterday's decision in Dandara South East v Medway Preservation [2024] EWHC 2318 (Ch). The disputes clause in the parties' land sale contract stated that "[a]ny dispute or difference between the parties as to any matter under or in connection with this contract" would be submitted a third-party decisionmaker. Under the clause, the decisionmaker has to afford the parties the opportunity to make written and oral representations and to respond to the other side’s representations. The decisionmaker must then render a decision, supporting that decision with written reasons. The decision is final and binding on the parties (with a very limited exception for manifest error or omission). That sounds very much like arbitration, doesn’t it? But the parties made very clear that they did NOT want arbitration. The decisionmaker is described as an "Expert". In what seems to be a common choice of language for expert determination clauses, Clause 28.3(a) said that the Expert “must act as an expert and not as an arbitrator”.   The buyer claimed it had terminated the contract and went to court seeking repayment of its deposit. Seller: “No, this is for the Expert to decide, not the court”. Buyer: “The contract has been terminated, so the expert clause has been terminated too” Seller: “Like an arbitration clause, the disputes clause is separable from the main contract. It survives even if the main contract doesn’t.” Previous case law had said that the separability principle didn’t necessarily apply to expert determination clauses because parties often don’t mean expert determination to be a “one-stop shop”. But in this case, the expert determination clause applies to ANY dispute between the parties as to ANY matter under or in connection with the contract. So, here, the court said the parties did mean expert determination to be a one-stop shop. Accordingly, the separability principle applied, the disputes clause remained in force, and the court stayed the litigation. (Confusingly, the parties had ALSO agreed in clause 31 that the English courts would “have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this contract or its subject matter or formation (including non-contractual disputes or claims).” The court construed this as conferring jurisdiction on the courts to enforce the Expert’s decision.) Sometimes it's easy to see the difference between arbitration and expert determination. Experts are sometimes given only a very limited job, for example valuing an asset or claim. But where the expert is given power over the whole dispute, what is the difference between expert determination and arbitration? What do you think?

Drafting Dispute Resolution Clauses for US Jurisdiction These clauses are a strategic roadmap for managing conflict, crucial for saving time, money, and stress if a disagreement escalates. The approach of a lawyer should centre on efficiency and control. The focus should be on resolving issues quickly and cost-effectively, while giving the clients a degree of predictability over the process. Good Faith Negotiation This is the simplest and cheapest, aiming for a direct resolution between the parties. One should specify who (e.g., senior management) should be involved and set a clear timeframe, like 30 days, to ensure prompt action. Mediation If negotiation falters, we move to non-binding mediation. A neutral third-party mediator facilitates discussion, helping find common ground. It's confidential, less formal than court, and often successful, focusing on settlement rather than legal victory. We usually split the mediator's costs and set a timeframe, perhaps 60 days. Binding Arbitration If mediation fails, arbitration is the next step. Here, a neutral arbitrator (or panel) makes a final, binding decision, much like a judge. This is chosen for its speed, privacy, and generally lower cost compared to litigation. When drafting, it's important to: *Explicitly state it's "final and binding." *Reference established rules, like those from the American Arbitration *Association (AAA) or JAMS, to provide clear procedures. *Define the number of arbitrators (one is often quicker). *Specify the location (venue) for arbitration. *Include waivers for jury trials and class actions, as these rights are typically given up in arbitration. #agreements #arbitration

Last month, I had a client contact me because they needed a cost effective solution to a small dispute. Neither party wanted to walk away from the dispute but the cost of initial advice from a lawyer, let alone issuing proceedings, made it difficult to justify. They could have mediated through the Small Business Commission but didn't want to wait and didn't want to risk not achieving an agreement. So, I created a new process for the client. The basic process was as follows: 🥇Both parties entered an agreement to participate in a dispute resolution process and agree to enter a terms of settlement document at the end. If the parties can't reach an agreement, they agree that I will determine the outcome. 🥈Just as in a mediation, I spoke with each party about their perspective and concerns. Each party provided supporting materials when they signed the agreement. 🥉Based on the discussions, I indicated the core issues and the contributions by each side to why a dispute had arisen. 🏅I then met again with each party individually to test out a couple of solutions I was thinking of to see their reactions. 🏆I shared my finding with the parties which was incorporated into a terms of settlement that was digitally signed by each party. 🍾 Both parties walked away wishing I'd made a finding slightly more favourable to them but willing to live with my decision and grateful to have put the issue behind them. Would you be willing to hand over control of your small dispute to a dispute resolver to get closure of the dispute for a fraction of the cost of litigation? Read more about the solution in this article - https://zurl.co/aFrn #disputeresolution #anewway 

⚖️ Arbitration vs Mediation vs Civil Suit – Choosing the Right Path to Resolve Disputes. In today’s fast-paced world, disputes are inevitable – whether in business, property, contracts, or personal relationships. But how we resolve them can make a huge difference in terms of time, cost, and outcome. Three common dispute resolution methods are Arbitration, Mediation, and Civil Litigation. While all serve the purpose of justice, they differ significantly in approach and impact. 🔹 Arbitration – A Private Courtroom Arbitration is like having a private judge. The parties choose an arbitrator (or a panel), present their evidence, and receive a binding award. It is more flexible and faster than courts but still formal in nature. ✅ Best suited for commercial and contractual disputes, especially cross-border transactions. 🔹 Mediation – Dialogue & Settlement Mediation focuses on collaborative resolution. A neutral mediator facilitates discussions, helping parties reach a mutually agreed settlement. It is confidential, cost-effective, and preserves relationships. ✅ Ideal for family disputes, workplace conflicts, and business negotiations. 🔹 Civil Suit (Litigation) – Formal Justice System Litigation is the traditional way – filing a case in court and letting a judge decide. It follows strict legal procedures and provides binding decrees. However, it is often time-consuming, expensive, and public. ✅ Best suited for property disputes, recovery suits, tort claims, and cases requiring enforceable judgments. 🔑 Takeaway Arbitration = Private, binding, faster than courts. Mediation = Voluntary, cooperative, preserves relationships. Civil Suit = Formal, enforceable, but lengthy and costly. 👉 The choice depends on the nature of the dispute, urgency, and the relationship between the parties. Businesses often prefer arbitration; families lean towards mediation; and complex legal rights usually go through litigation. ✨ Final Thought Dispute resolution is not just about winning a case – it’s about finding a fair, practical, and sustainable solution. The right choice can save time, money, and relationships. #Arbitration #Mediation #Litigation #CivilLaw #DisputeResolution #LegalAwareness #CorporateLaw #ADR #Justice #LinkedInLaw

The existing Indian Securities Market is governed under the aegis of stock exchanges and depositories, i.e. Market Infrastructure Institutions (MII’s). The Securities and Exchange Board of India (‘SEBI’) vide its regulation dated 31st July 2023 issued a Circular which was pursuant to the SEBI (Alternative Dispute Resolution Mechanism) (Amendment) Regulations, 2023. Vide this circular, the SEBI aims to establish an Online Dispute Resolution Portal (“ODR Portal”). Each MII will empanel one/more ODR institutions that can have time-bound arbitration and conciliation as per the Arbitration and Conciliation Act, 1996 (“Arbitration Act”). A three-tier system has been provided for redressal of grievances. Those are:  (i) In case of a dispute, any concerned investor may file a complaint before the Marketing participant itself. (ii) In the failure of the redressal by the participant, the investor can use the SEBI’s Complaint Redressal System (“SCORES”) portal in accordance with the process. (iii) The investor can use the ODR portal by the MII’s as the next resort, in case of non-redressal of grievance.  A 15-day notice to the other side is mandatory before instituting proceedings through ODR. Technical rules are established to have a system of uploading Documents, and status updates for the ongoing proceedings from the ODR Institutions. The ODR Institution may appoint an independent Conciliator from their panel within 5 days of reference of a complaint. The Conciliator is supposed to reach to a conclusion by amicable settlement within 21 Calendar days (extendable to 10 calendar days) upon their appointment. In case the Conciliation proceedings fail to reach a conclusion, the Conciliator may ascertain the claim value and notify the parties, ODR Institution, and the MII’s of the same. Any party may continue with online arbitration facility by the ODR Institutions upon payment of the concerned arbitration fees by both parties.  If the total value of the Claim is Rs. 30,00,000 or more, a three-member arbitration panel should be instituted. Whereas, if the claim is of Rs. 1,00,000 or less, a document-only arbitration can be conducted. However, withdrawal shall not be permitted once the arbitrator has been appointed. Award should be fulfilled within 15 days of the award being passed. Furthermore, any challenge to the award of arbitration should be as per the provisions of the Arbitration Act. Parties may face consequences in the case of non-fulfilment of the award passed by the arbitrator, such as freezing of the demataccount, suspension of business activities, and the cancellation of their registration. The matters that are appealable before the Securities and Appellate Tribunal lie outside the purview of this portal. ODR system aims to facilitate a speedy redressal system along with providing several measures for monetary security of investors. Tanay Musale : ANB Legal- India   #sebi #securities #investors