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Arbitration is driven by rules.
Interests and needs are of no consequence because arbitration is adjudicative and rights-based.

Arbitration can be quick, cheap and final though it is the ground rules agreed to up front that will determine how complex, drawn out, and expensive the process turns out to be.

For Arbitration to keep its promise as a cheap, quick and effective way to resolve a dispute, the disputants must agree that the process may not be riddled with opportunities for excessive delays, pleadings, and other types of mischief that can make it an even more onerous that litigation.

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Arbitration’s promise is one that vastly improves on litigation.
However, it can become as much of a problem as litigation is.
This depends on the ADR Agreement’s ‘rules of engagement’.

Arguably, most commercial Arbitration Agreements are poorly drafted;
often by lawyers that are not specialised in the field of ADR.

A poorly drafted Arbitration agreement can lead to all sorts of challenges – many of which require a court’s interpretation of its content. That causes unnecessary delays and costs normally associated with litigation.

A ridiculous, yet real example is one where an agreement names the Arbitration Foundation of South Africa as administrator/ referee. The correct name is The Arbitration Foundation of Southern Africa. That provides an obstructive party an opportunity to frustrate, delay, and drive up costs by pursuing the intervention or determination by the court. When Arbitration turns in to a fiasco with shenanigans typical of litigation, it is almost always because of poorly drafted agreements.

Because you and your counterpart know the detail, practicalities, and nuances of the undertaking better than anyone, so it is you and your counterpart that must decide how conflict will be handled.

A Mediator can help with collaboration, and consensus as to what the ADR process should be in lay terms.

When that is crystal clear, the Mediator documents the Heads of Agreement and hand that over to a suitably qualified lawyer to review and clarify, question or propose, as needed. Then the final tweaks are incorporated in to a ‘heads-of-agreement’ – also in lay terms and fully understandable by the parties.

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Only then does a Specialist in the Drafting of Arbitration Agreements start putting pen to paper – ensuring that it becomes robust and implementable as intended by the participants.

 

The problem with communication is the illusion that is has occurred ~ George Bernard Shaw