ADR in Business: Practice and Issues Across Countries and Cultures, Volume 2

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Kluwer Law International, 2011 - Law - 657 pages
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Whether the and‘Aand’ stands for and‘appropriateand’, and‘amicableand’, or and‘alternativeand’, all out of court dispute resolution modes, collected under the banner term and‘ADRand’, aim to assist the business world in overcoming relational differences in a truly manageable way.

The first edition of this book (2006) contributed to a global awareness that ADR is important in its own right, and not simply as a substitute for litigation or arbitration. Now, drawing on a wealth of new sources and developments, including the flourishing of hybrid forms of ADR, the subject matter has been largely augmented and expanded on two fronts: in-depth analysis (both descriptive and comparative) of methodology, expectations and outcomes and extended geographical coverage across all continents.

As a result, in this book twenty-nine and‘intertwined but variegatedand’ essays (to use the editorand’s characterization) provide substantial insight in such specific topics as:

  • ADRand’s flexible procedures as controlled by the parties;
  • ADRand’s facilitation of the continuation of relations between the parties;
  • privilege and confidentiality;
  • involvement of non-legal professionals;
  • the identity and the role of the and‘neutraland’ as well as the role of the arbitrator;
  • the implementation of ICC and other international ADR rules;
  • the workings of Dispute Boards and
  • the role of ADR in securing investment and other specific objectives.

In its compound thesis and– growing in relevance every day and– that numerous dispute resolution methods exist whose goals and developments are varied but fundamentally complementary, the multifaceted approach presented here is of immeasurable value to any business party, particularly at the international level. Practitioners faced with drafting a dispute resolution clause in a contract, or dealing with a dispute that has arisen, will find expert guidance here, and academics will expand their awareness of the issues raised by ADR, in particular as it relates to arbitration. A broad cross section of interested professionals will discover ample material for comparative study of how disputes are approached and resolved in numerous countries and cultures.

 

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Contents

Chapter
13
A Choice Inspired by the Nature of ADR
24
A Choice Inspired by the Nature of the Contract
36
Conclusion
45
User Contribution
51
Trainer Contribution
53
An International Mediator Perspective
60
Chapter 4
67
Conclusion
312
Delegating Settlement Procedures
319
Chapter 16
327
Getting Appointed
331
Chapter 17
339
Conflict Escalation and Developing
345
Sequential Parallel or Hybrid
357
Special Considerations When Moving Around a Riskin Grid
373

Conclusion
80
Mediation without a Dispute or Negotiation
90
In What Types of Negotiation Can a DealFacilitator
103
Toolkit Making and Sustaining a Deal vs Dispute Resolution
110
Part II
117
CourtConnected Mediation in the Netherlands
124
Considering Developments in Other Parts of the World
130
A Standard Typology
137
Further Distinctions
147
Chapter 8
157
Commencement and Conduct of an ADR Procedure
163
The end of the ADR proceedings
179
The English Courts Approach to Mediation Confidentiality
186
The EU Directive
205
Chapter 10
211
Principles for ADR Provider Organizations
217
Differing Roles for Mediation Centres
229
The Case for Mediation Centres
233
ADR and Enforceability
248
Chapter 12
255
The Clauses on Which ADR Cases Are Based
262
ADR 20102020
275
Proposing ADR as a Dispute Emerges
286
Chapter 14
293
Negotiation
299
Mediation Representation Plan
305
Conclusion
379
Mediated Settlement Agreements as Arbitral Awards Under
391
Conclusion
398
ICC DB Standard Clauses
404
New Trends in DB Practice
414
Chapter 20
421
Conclusion
427
Admissibility of Evidence of Communications Made during Mediation
437
Enforceability of Agreements to Mediate
444
Hybrid Processes
451
Chapter 22
457
Conclusion
513
Recent Developments in Mediation in East Asia
515
Mediation in Other East Asian Nations
531
Conclusion
556
Lack of a Comprehensive Legal Framework
568
Practice of ADR Failing Comprehensive Legal Provisions
574
Ancillary Services Offered by Centres of Conciliation Mediation
580
ADR Practices
587
Primary Areas of ADR in South Africa
594
Chapter 27
601
Chapter 28
611
Chapter 29
625
The Contents of the Directive Continued
647
Final Remarks and Conclusion
656
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