In his Final Report in his Chancery Modernization Review Lord Justice Briggs recommended a closer focus on ADR at case management conferences ("CMC") and, in particular, that "case management should be seen to be directed toward dispute resolution, rather than merely preparation for a full trial which is unlikely to take place." He specifically recommended requirements for parties to address the timing, type of and impediments to ADR in an expanded questionnaire before the first CMC and for the court at the first CMC to give detailed consideration to assisting the parties in the choice and timing of ADR.
Traditionally, ADR has been seen as an alternative to litigation rather than a set of options to facilitate the speedy and cost-effective resolution of a dispute. It is perhaps one of the consequences of the decision in Scott v. Avery, (1856) 5 H.L.Cas. 811. In fact, mediation, early neutral evaluation and all the other methods of dispute resolution including even arbitration have always been available to the parties to a dispute at every stage from the letter before claim to the allocation of the costs of a final appeal. The implementation of Lord Justice Briggs's recommendation will oblige the parties and the judge or master to consider all those options from the first CMC to the disposal of the case. By the same token it should not be forgotten by those who have agreed to resolve their disputes by arbitration and indeed arbitrators that there is nothing to prevent the parties from using mediation or other methods of dispute resolution to facilitate settlement.
When I was practising alone in Huddersfield I set up specialist IP and technology arbitration and mediation services known as NIPCArb and NIPC-Mediation. Both of those schemes were moderately successful. In particular, we operated "Safe Harbor" dispute resolution schemes for several US companies. Since 11 Feb 2013 when I accepted an invitation to join 4-5 Gray's Inn Square, I have been working with my colleagues and clerks to bring those services to London.
Although we are all happy to resolve any kind of dispute we each have our special interests and expertise. I am interested in computer supply. technology transfer and patent and know-how licensing disputes. Having been a senior in-house legal advisor and Vice-President of the Motion Picture Association of America, Mr Dillon developed considerable expertise interest in film, TV and entertainment law. As an appeal court judge of a country whose legal system combines elements of English and Roman law, Prof. Harms is ideally placed to determine disputes between parties in common law and civil law countries. In particular, as South Africa is a rapidly developing economy he will be in a better position than most to determine disputes between parties in advanced and developing nations (see "Visit by Professor Louis Harms" 12 Sept 2013).
The service is managed by George Scanlan, our First Junior Clerk, and for the time being we shall use the old NIPC Arbitration and Mediation Rules. Also, the old NIPC terms, conditions and charges will continue to apply. I am, however, working on new sets of arbitration and mediation rules in consultation with my colleagues. Should you like us to resolve your dispute by mediation, arbitration or some other form of ADR you will need an agreement to that effect with the other side. You will find sample mediation clauses before a dispute arises, guidance on mediation after a dispute has arisen and sample arbitration agreements and clauses by clicking these links.
Should you require additional information or assistance, call George on +44 (0)20 7404 5252 during normal business hours or send him a message through his contact form. You can also also tweet me, write on my wall or send me a message through G+, Linkedin or Xing. As this is likely to be my last post before the 31 Dec 2013 I should like to wish all my readers a happy and prosperous New Year.