Originally from: The Leading Arbitrators' Guide to International Arbitration - 2nd Edition - Hardcover
The Leading Arbitrators' Guide to International Arbitration - 2nd Edition - Electronic
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ADR and Arbitration
David W. Plant
I. INTRODUCTION
From the other chapters in this book, it is abundantly clear that
international commercial arbitration has many virtues. They have been
realized again and again over the years. However, in some cases, costs
and inefficiencies have exceeded both expected and actual rewards.
Ambrose Bierce has described litigation as “a machine which you go
into as a pig and come out as a sausage.”1 Experience shows it is not a
long stretch to define some international arbitration procedures in the
same manner. Why?
In complex, commercial international arbitration, it is not unusual for
counsel to take, and concurrently the parties to lose, control of the
proceedings. Often, the process takes on a life of its own. Virtually every
dispute in arbitration focuses on past misdeeds, sometimes to the
detriment of a potentially constructive future relationship. The pathology
of the process polarizes parties, to say nothing of depleting resources.
Business people, lawyers, and arbitrators are frequently sensitive to this
dynamic. When they are, they can do something about it.
Even when an arbitration is proceeding relatively efficiently and in
accord with expectations, settlement before an evidentiary hearing is not
uncommon. Often, this occurs through negotiations conducted by
parties and counsel on their own – precisely what would be expected of
competent counsel and informed business people. In some instances,
such settlements occur with the assistance of a so-called neutral person,
who facilitates the discussions between or among the parties and their
counsel.
We explore here what parties and their counsel can do about
resolving their differences short of time-consuming and resourcedepleting
adversarial proceedings. We look at the possibilities offered by
the ADR spectrum, whether or not any can be used in international
commercial arbitration, how and under what circumstances, and with
what expected results. Along the way, we touch on issues of
professional responsibility.
II. WHAT IS ADR?
ADR means different things to different people. In the international
arena, its meanings diverge due to cultural, language, and experiential
backgrounds of parties, counsel, and arbitrators. Differences in
definitions have engendered substantial, and not always constructive,
debate. It is imperative that those who are considering ADR not permit
their deliberations to founder on semantic shoals.
When the term “ADR” originated 25 years ago, it referred to
Alternative Dispute Resolution techniques. As time passed,
“Appropriate” has sometimes been substituted for Alternative, and
more recently in the ICC’s ADR Rules, “Amicable” has surfaced in lieu
of Alternative or Appropriate.
This is only one example of the semantic difficulties frequently
faced in discussions of ADR and whether and when it is applicable. The
examples increase exponentially when language and other cross-cultural
factors come into play.
David Plant practiced law in New York City with Fish & Neave from 1957 through 1998. Since retiring from Fish & Neave, he has practiced exclusively as an ADR neutral and a teacher. For more than 20 years, he has served as a mediator in U.S. and international disputes, arbitrator in ICC, Stockholm, UNCITRAL, AAA, CPR, WIPO, court-annexed and ad hoc arbitrations, and Special Master in US District Courts - in more than 300 matters. He has written and spoken around the world on ADR matters. Mr. Plant is a Fellow of the Chartered Institute of Arbitrators, College of Commercial Arbitrators, International Academy of Mediators, and American College of Civil Trial Mediators.
