What are the Different Forms of Arbitration?

  A) Different Types

      i) Administered [Institutional]
      ii) Self-Administered [Ad-Hoc]
      iii) Assisted [Hybrid]
      iv) Selecting an Appropriate Type

  •  1. Cost       
  •  2. Efficiency
  •  3. Flexibility
  •  4. Control
  •  5. Customization
  •  6. Confidentiality
  •  7. Speed
  •  8. What are they best for?
     

  B) Accelerated Arbitration

  C) Hybrid & Other Processes

      i) Med-Arb
      ii) Minitrial
      iii) Early Neutral Evaluation

a) Different Types

 i)  Administered [Institutional]

An administered approach requires the active involvement of a separate administering entity as a matter of course throughout the process. Administered ADR occurs under the auspices of a court or an independent ADR entity that functions much like a clerk by arranging and managing conduct of the ADR proceedings, including providing filing, docketing, and logistical, administrative and secretarial support. Due to its significant involvement, the administering entity typically charges a substantial fee for its services. This is in addition to the fee charged by the neutrals(s).
(A Guide to Self-Administered ADR and CPR’s Dispute Resolution Services)

 ii) Self-Administered [Ad-Hoc]

A self-administered process is designed to proceed without the involvement of a separate administering entity. Instead, the neutral(s) and parties, themselves, administer the proceedings. The process may also involve an ADR provider entity, which simply assists with the selection of neutrals if called upon by the parties’ agreement or if for some reason the parties are unable to select a neutral. The selected neutral manages all aspects of the proceedings not controlled by the parties under their agreement, including keeping the necessary files, arranging the location of the proceedings, and agreeing upon a neutral fee and collection process. The proceedings may follow institutional rules and procedures, such as those outlined in CPR’s Rule for Non-Administered Arbitration and the CPR Mediation Procedure, or may adhere to a procedure defined by and agreed to by the parties. A major advantage of this approach is that such proceedings typically cost less than institutional processes because there is no need to pay an institution a percentage of the claim as a filing fee, or indeed any fees, if the parties can proceed on their own without an institution’s intervention. (A Guide to Self-Administered ADR and CPR’s Dispute Resolution Services)

 iii) Assisted [Hybrid]

For those using a self-administered approach, situations may arise in which limited administration may be needed for a given type of matter. In these instances, assisted dispute resolution services – like customized neutral selection services, fund holding, award review, and serving non-respondents – may be provided upon request of the parties. In this approach, parties only pay for the services that they use. By merging the flexibility of a self-administered resolution process with occasional administrative support, the assisted resolution approach offers parties the best of both worlds.
(A Guide to Self-Administered ADR and CPR’s Dispute Resolution Services)

 iv) Selecting an Appropriate Type

  • Cost:
  • Administered: Fee for the services of the institution in terms of filling fees, neutral fees, and other administrative fees.
  • Self-Administered: None
  • Assisted: You pay only for what you use from the institution and fees for the services of neutrals.
     
  • Efficiency:
  • Administered: Administrator usually acts as a middleman for everything from pleadings to billing.
  • Self-Administered: Proceeds as quickly as desired, without the intervention of a middleman.
  • Assisted: Proceeds as quickly as desired. An institution is used only when necessary. 
     
  • Flexibility:
  • Administered: Parties must follow pre-set and established rules.
  • Self-Administered: Rules and procedures can be drawn up by parties as they wish.
  • Assisted: When needed, there are procedures in place to help with neutral selection, challenges, etc.
     
  • Control:
  • Administered: Administrator and specific rules govern the proceeding.
  • Self-Administered: Parties are able to select specific process alternatives in response to the changing goals and expectations that parties may bring to the table.
  • Assisted: When needed, parties may request administrative assistance. However, parties retain as much control as they desire.
     
  • Customization:
  • Administered: Parties must follow the rules of the Administrator without room for customization.
  • Self-Administered: Parties handle all administration and design their own proceedings.
  • Assisted: Parties may customize the role of the Administrator as they see fit, using services for selection, billing or other unmet needs.
     
  • Confidentiality: 

No matter which process you choose, “[a]rbitration proceedings are private but not necessarily confidential.” It is a common misconception that arbitration proceedings must be confidential by law, but “[i]n the absence of a specific confidentiality provision in the arbitration clause or operative institutional arbitration rules… parties are generally under no duty to protect the confidentiality of arbitration materials. (CPR Model Clauses and Sample Language)

  • Administered: (see above)
  • Self-Administered: (see above)
  • Assisted: (see above)
     
  • Speed:
  • Administered: (see “Accelerated Arbitration” below)
  • Self-Administered: (see “Accelerated Arbitration” below)
  • Assisted: (see “Accelerated Arbitration” below)
     
  • What are they Best For:
  • Administered: High volume pattern cases requiring set procedures and a high level of administration.
  • Self-Administered: Experienced clients and/or counsel knowledgeable in ADR procedures and complex commercial matters.
  • Assisted: Complex cases where the subject matter requires neutrals with highly-specific expertise or when parties and/or neutral desire a limited level of administration during the proceedings.

b) Accelerated Arbitration

 B) Accelerated Arbitration

This process represents a procedure for resolving disputes in an expeditious manner that can be used in administered or non-administered arbitrations, and which allows the Arbitral Tribunal to set the proceeding on its own track to resolve the dispute as quickly as the parties desire.  (CPR Global Rules for Accelerated Commercial Arbitration)

c) Hybrid & Other Processes

 C)   Hybrid & Other Processes

 i)    Med-Arb

The Term "med-arb" carries with it certain ambiguities. For example, it can be interpreted as a multi-step arrangement where the parties agree first to mediate and then to arbitrate any unresolved issues before a different individual other than the mediator. However, sometimes the term ‘med-arb’ is interpreted to refer to a process whereby the same individual functions as both a mediator and, if necessary, an arbitrator in the dispute. This duality has been an area of active debate. (CPR Model Clauses and Sample Language)

 ii)    Minitrial

The minitrial is at its core an ‘information exchange’ session between the parties and their counsel in which the party representatives, who process authority to settle, become informed of the strengths and weaknesses of the case. The party representatives essentially hear compressed versions of opening and closing statements by counsel and have an opportunity to ask questions. Witnesses may also provide an abbreviated version of their testimony. After this ‘exchange of information’ phase concludes, the party representatives attempt to negotiate a resolution. Although a non-party neutral is not necessary to the process, a minitrial often does include the participation of a neutral advisor to assist the parties through the process. The neutral can also serve as a mediator during the negotiation phase if the parties so desire.
(CPR Model Clauses and Sample Language)

 iii)    Early Neutral Evaluation

Early Neutral Evaluation provides disputants with a frank professional evaluation of their claims and defenses by a professional, objective observer – often a Magistrate Judge. It is used when the parties disagree significantly about the value of their cases and are locked in positional bargaining. ENE benefits the parties by adding to the negotiation certain assessments whose neutrality may lend them authority and utility, without changing their positions or interests.
(ADR Primer)

The information and resources on this website should not be construed as legal advice or opinion, or as a substitute for the advice of counsel.