Arbitration is a private process, where a neutral arbitrator makes a legally-binding decision on the basis of the evidence provided by the parties. The arbitrator is empowered to do this by mutual consent of the parties, usually through a written agreement to arbitrate. An arbitration agreement can be incorporated into an underlying commercial contract, such as for goods, services, or purchase and sales.  

The parties may appoint the arbitrator of their choice, either directly or via an appointing authority. The arbitrator evaluates the evidence provided by the parties and then presents their decision in a written ‘award’. The award is final, binding and enforceable and will – like a court judgment - usually find that one party is more right than the other. Arbitral awards can only be appealed in national courts in exceptional circumstances. 

What does an Arbitrator do?

Once an arbitrator, or panel of arbitrators, has been appointed, they will review the arbitration clause in the contract. Applying the relevant Arbitration Rules, procedure, law and legal principles, the arbitrator agrees the arbitration process with the parties. 

The parties submit all relevant evidence to the arbitrator. There are sometimes, but not always, meetings and ‘hearings’ where people present evidence and answer questions. The arbitrator will then evaluate the evidence, make a decision, and write this in a document know as an ‘award’.  

The award will cover all the issues that have been raised, and will usually find that one side is found to be more right than the other(s), in a similar way to the decision made in court by a judge.  

Why choose Arbitration?

• Choice of neutral: You and the other party(ies), or an appointing body, choose the arbitrator with the right specialist expertise for your dispute.  
• Control of procedure: You and the other party(ies) agree which rules and procedure will be applied in the arbitration. In court processes, the court determines the process and rules. 
• Finality of outcome: Costs and time involved can be mitigated, because the award is final, binding and can rarely be challenged in court. This prevents costly delays following from appeals of the outcome. (NB: In some jurisdictions, no appeal is allowed. In others, including the UK, it is only possible in exceptional cases and for limited reasons.) 
• Choice of dispute resolution process: Your contract may include a Dispute Resolution Clause that specifies arbitration, which means you must use arbitration. This does not however prevent jointly agreed mediation to find a mutually acceptable resolution before or during arbitration. 

What other dispute resolution processes can be used once arbitration has started?

Arbitrators can encourage parties to negotiate directly, to hold settlement conferences (with parties and their lawyers - which in some jurisdictions may be referred to as 'mediation'), or to use mediation conducted by a different third-party who is a qualified mediator, not by the arbitrator themselves. In some cases, where parties reach settlement at a mediation conducted after arbitration has started, they can request that the arbitrator convert their mediation agreement into an arbitration award. 

Mediation is a flexible, confidential, process where a neutral mediator facilitates the parties’ search for a mutually acceptable outcome. The parties retain autonomy over how long they participate, what the terms of settlement are, and whether they settle. In other words, a mediator will not, and cannot, force parties to accept an agreement. Mediation in the UK is ‘without prejudice’, so genuine offers of settlement made during the process, cannot be used by the parties against each other after the mediation. 

The mediator is granted authority to mediate by the parties through a simple legal contract called a ‘Mediation Agreement’. This sets out the main terms on which the mediation will be conducted. If a settlement is reached this can be formalised by the parties in a ‘Mediation Settlement Agreement’. If there are legal proceedings, this will usually be formalised by the lawyers who will also write a ‘consent order’ which is filed with the court and ends the legal proceedings. Once this is done, if one side defaults on the agreement, the other can go back to the court to request enforcement. 

If there is no settlement, or a partial settlement, the remaining issues may be taken forward for resolution in a further mediation, arbitration, or court process depending on what the parties have agreed. 

What does a Mediator do?

The mediator guides and manages a flexible process tailored for each individual mediation. Mediations usually involve some combination of joint and individual meetings with everyone involved and confidential separate meetings with the different parties. Through this process the mediator enables the parties to understand and appraise their own situation better, exchange information (with permission), engage in risk analysis, and ultimately to exchange ‘without prejudice’ offers. When parties reach a mutually acceptable agreement the mediator oversees the writing of a settlement agreement. The writing of settlement agreements is usually done by the parties’ lawyers. 

Why choose Mediation?

• Choice of neutral: The parties can choose a mediator based on the particular mix of personal, technical and legal expertise required.  
• Speed and cost: Mediation typically takes a few hours or days rather than months or years, and it can be organised at very short notice.  
• Combining processes: Mediation can be used before, during and after adjudicative processes, including court, arbitration and adjudication to save time and money, and create workable solutions to outstanding and/or consequential issues. 
• Comprehensive process and final settlement: The parties can deal with all legal, personal and commercial issues ensuring that an outcome is workable at all levels. 
• Finality of outcome: Settlements are reached based on the agreement by all, meaning the parties implement the agreement because they believe it is in their interest to do so. 
• Choice of dispute resolution process: Your contract may include a Dispute Resolution Clause that specifies mediation, which means you must use mediation and retain the right to settle only if a workable solution is found. If not, you will be able to use a different process.

Adjudication is a private process, where a neutral adjudicator with subject-matter expertise makes a legally binding decision about the dispute, on the basis of written evidence only, within a short, fixed, timeframe.   

The parties give an adjudicator the authority to do this when they sign a contract which specifies that disputes arising out of the contract will be resolved through adjudication. When a dispute arises, the parties can appoint an adjudicator directly, or through a provider (often referred to as an Adjudicator Nominating Body, or ANB) such as Ciarb.  

Adjudication is a statutory process in construction disputes in England, Wales and Northern Ireland, which means that you are required to use it as your dispute resolution method if you are party to a construction contract. 

The adjudicator evaluates the written evidence provided by the parties and writes a ‘decision’. The decision is final and binding and will – like a court judgment - usually find that one party is more right than the other. The decision can only be appealed in court for very specific, very limited reasons. 

What does an Adjudicator do?

Once an adjudicator is appointed, they review the adjudication clause in the contract. Applying the relevant Rules, procedure, law and legal principles, the adjudicator confirms the process with the parties.  

The adjudicator has to request, receive and review all the evidence which the parties must deliver to them. The adjudicator must then evaluate the evidence, cover all the issues raised and document the outcome within a fixed time period, which varies in different contexts, but which is usually either 14 or 28 days.

Why choose Adjudication?

• Choice of neutral: The parties can choose an adjudicator based on technical expertise.  
• Specific answers to specific disputes: Parties can request adjudication to resolve one specific issue within a wider contract. 
• Speed of procedure: In the UK the process takes 28 days in total, unless both parties agree to extend this to 42 days, meaning disruption is minimised and money saved. 
• Finality of outcome: Adjudication outcomes are binding and appeals to the court are rare and are very rarely successful.  
• Choice of dispute resolution process: Your contract may include a Dispute Resolution Clause that specifies adjudication, which means you may have to use adjudication. This does not prevent jointly agreed mediation to find a mutually acceptable resolution.

A dispute board is a group of dispute resolution experts with subject matter expertise who are selected by the contracting parties to provide dispute prevention and resolution services from the inception to conclusion of the contract.  

Dispute boards are familiar with the contract, the subject matter and industry norms. They can recommend, advise and deploy different conflict and dispute management and resolution tools, as required, to maintain relationships, resolve issues as they arise, and prevent disputes from derailing a project.  

The dispute board is contracted jointly either through a clause within the overall contract, or through a separate contract. As a result, the composition of the dispute board and its mode of operation can vary considerably. For further information please see the Ciarb international Dispute Board Rules. 

Why choose to have a Dispute Board?

• Time saving: Dispute resolution professionals who are familiar with the underlying contracts and context can provide rapid and effective early action to keep the contract on track and to prevent relationship breakdown. 
• Cost saving: There are cost efficiencies in managing inherent conflicts, preventing escalation and having on-project resource to resolve disputes at an early stage if they do arise. 
• Project specific support: Having the specific technical expertise combined with dispute resolution expertise helps to identify issues at inception in large, complex projects, preventing structural conflicts being built into a project. 

In some jurisdictions the term dispute board is synonymous with adjudication. This is not the case in the UK, but is useful to be aware of if operating internationally. 

Early neutral evaluation is a confidential appraisal of a legal dispute conducted by a qualified legal professional for the benefit of both sides. This appraisal provides the parties with a view on likely outcomes of legal proceedings. The parties can use this to inform their decisions (jointly and/or individually) to negotiate and/or decide which other dispute resolution route to take.

Expert determination is a confidential process in which a neutral subject matter expert hears and reviews evidence from both sides and makes a binding decision on how the dispute should be resolved. 

Expert determination is used in a wide range of technical disputes across a range of sectors and draws on subject matter expertise. Matters which may be referred to an Expert could be related to specific technical issues, valuation, quantum and delay issues.