What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) is an umbrella term for a range of processes and techniques that help parties resolve disputes without going to court. ADR usually involves the assistance of a third party neutral, and is often less formal, cheaper and quicker than litigation. ADR procedures are also usually confidential. Under the Civil Procedure Rules, judges now generally expect the parties to have considered the use of ADR, before commencing court proceedings.
CIArb’s Dispute Appointment Service (DAS) currently offers assistance with respect to the following ADR methods:
How can DAS assist me with my dispute?
DAS provides quick, confidential and cost effective methods of dispute avoidance or dispute resolution for domestic and international disputes, in a diverse range of areas.
DAS primarily acts as an appointing body; it can select and appoint a suitable dispute resolver to deal with the dispute, when requested to do so by all parties to the dispute, or by one party in reliance on a pre-existing written agreement between the parties.
The fixed cost for an appointment is between £360 - £750 (inclusive of VAT), depending on the method of ADR being used. DAS can also suggest to one party or all parties the names of three suitable dispute resolvers, where the parties wish to make the appointment themselves. The fixed cost for this service is £120 (inclusive of VAT).
If the parties wish to adopt institutional rules to govern the process, they can also look to DAS to provide arbitration rules and mediation rules.
Lastly, DAS has developed various bespoke ADR schemes to deal with low value disputes (e.g. the Business Arbitration Scheme) or disputes relevant to a particular sector (e.g. property or media).
How long does DAS take to make the appointment?
DAS usually makes the appointment within 1-3 business days of receipt of the application form and referral fee.
Can DAS still appoint a dispute resolver if the other party to the dispute does not consent?
For DAS to assist with the appointment of a dispute resolver, it will need to be satisfied that there is, or there was at some stage, agreement between the parties for The Chartered Institute of Arbitrators (CIArb) to make the appointment.
If the parties are jointly applying to DAS for an appointment, they simply need to sign Part B of the application form to indicate their agreement.
If, however, one party is applying to DAS unilaterally for an appointment, that party will need to provide DAS with evidence that there is agreement between all parties to the dispute to CIArb making the appointment.
This agreement often takes the form of a dispute resolution clause contained in a written contract between the parties, which provides for CIArb, or the President of CIArb, to nominate or appoint an arbitrator/mediator/adjudicator/expert, as the case may be.
If the applicant party is able to provide DAS with written evidence that the other party/parties to the dispute gave their consent to CIArb making the appointment, then DAS can proceed, irrespective of whether the other party has now changed its mind or is not participating in the process.
Without such written evidence, DAS will be unable to proceed with a unilateral application for an appointment.
Please note the position is different if a party is merely requesting DAS to suggest the names of three suitable dispute resolvers, and not to make an appointment. In that situation, DAS does not require written evidence of agreement between all parties in order to act.
Which party is responsible for paying the referral fee to DAS?
Where an application has been made to DAS unilaterally, it is the responsibility of the applicant to pay DAS’s referral fee, unless the parties agree a different arrangement.
In the case of a joint application, it is for the parties to agree who should bear the referral fee. The referral fee should be paid in advance of, or at the time of, making the application, and can be paid by either cheque, credit card, or by bank transfer.
Can DAS suggest appropriate wording for a dispute resolution clause when parties are entering into a contract?
DAS will be pleased to assist the parties with wording for a dispute resolution clause at the contract drafting stage.
DAS has some recommended dispute resolution clauses available to which parties can refer.
How does DAS select and appoint dispute resolvers?
CIArb has three Presidential Panels: a Panel of Arbitrators, a Panel of Adjudicators, and a Panel of Mediators.
Where the parties have agreed in writing for the President of CIArb to appoint an arbitrator, adjudicator, or mediator, the President will use the applicable Presidential Panel to identify and nominate a suitable candidate.
Each Presidential Panel is comprised of pools of people from CIArb’s membership, all of whom have demonstrated to CIArb that they have a suitable level of knowledge, skill and experience in their discipline, together with a commitment to ongoing personal professional development and to following high ethical and professional standards of conduct.
The President makes his/her selection with the assistance of the DAS team. The DAS team uses a bespoke database to search the applicable Presidential Panel, according to key search criteria, in order to elicit some results. (Please note that this is an internal database visible to the DAS team and is not connected to the Membership Directory).
Search criteria may relate to, inter alia, profession, language proficiency, nationality, qualification, or area of expertise. If the applicant and/or the respondent have also put forward proposals in this regard, these will be taken into account.
The DAS team will select between three and five candidates identified from the search results, and will send their CVs to the President, together with a dossier of the case, for the President to rank the candidates in order of preference.
The highest ranked candidate will be appointed, subject to their confirmation that they are willing and able to accept appointment, and are conflict free.
Once the appointment is made, that is usually the end of our mandate, and we have no further role in the proceedings.
One or more of the disputant parties is based outside of the UK. Can DAS still assist?
DAS can assist the parties with finding or appointing a dispute resolver regardless of where the parties are based.
Although the Executive is based in London, CIArb is an international organisation with a worldwide membership of 15,000 and a global presence in over 130 countries.
This diversity in our membership is reflected in our Presidential Panels, which comprise members based both in the UK and abroad.
Can I obtain a list of everyone listed on your Presidential Panels?
Unfortunately, due to the number of candidates listed on each our Panels, it is not practical for us to provide parties with a complete list of our Presidential Panels.
By applying to DAS for an appointment or for a three-name suggestion, DAS will use the relevant panel to identify the most suitable candidates for appointment in the dispute at hand.
How long does an average arbitration last and how much will it cost?
It is important to recognise that there is no such thing as an 'average arbitration'.
The length and cost of arbitral proceedings vary immensely, due to the number of varying factors that can apply.
Such factors may include (but are not limited to:
- the complexity of the case
- the participation of the respondent
- the presence of a counter-claim or jurisdictional objections
- the number of procedural steps involved
- the number of parties
- the number of arbitrators
- any challenges made to an arbitrator
- whether the arbitration is conducted on a documents-only basis or requires an oral hearing.
The length of proceedings is invariably connected to the cost of proceedings because arbitrators usually charge for their time at an hourly rate, usually from £150 per hour upwards.
There are methods that the parties can adopt to reduce the time, and cost, of proceedings, such as:
- having the case conducted on the documents only, without an oral hearing
- having the case heard by a sole arbitrator instead of a three-member tribunal
- reducing the amount and length or witness/expert evidence.
DAS also offers various schemes and rules aimed at reducing or controlling the cost of arbitral proceedings, such as:
- the Business Arbitration Scheme (a fixed cost arbitration scheme for claims of between £5,000 - £100,000 which provides a legally binding award in less than three months)
- Cost Controlled Arbitration Rules (for use in smaller claims, to ensure that the total cost of the arbitration is not more than 20% of the amount in dispute).
Can DAS provide me with legal advice?
As DAS is not an advisory body, and in order to maintain its neutrality and independence, it does not and cannot provide the parties with legal advice.
Accordingly, DAS cannot provide parties with advice as to if or how they should pursue their claim, or about the law applying to their dispute. If the parties have any such questions, DAS recommends that they seek independent legal advice.
What do I do if I have a complaint about the conduct of the dispute resolver?
In the event that you have a complaint relating to the conduct of a member of CIArb, please email firstname.lastname@example.org, or write to: Tom Cadman
Director of Governance and Legal Services
12 Bloomsbury Square
London WC1A 2LP
Please mark the envelope 'Private & Confidential'. CIArb will acknowledge receipt of the complaint within a maximum of five working days. A response to the complaint will normally be sent within 25 working days.
View Guidance as to how CIArb investigates complaints of misconduct against its members by downloading our Complaints Booklet.