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APRIL 2013Legal Focus 105worldwide with a combined value exceeding£1bn. Independent interventions includingconciliation, mediation, facilitation, evaluation,investigation, adjudication, arbitration,coaching, independent chairing - our peoplehave seen it all and do it all.What are the main challenges involved indrafting a dispute resolution clause?It is actually relatively straightforward – at heart,the clause outlines that in the event of adispute, the parties involved affirm a dedicationto pursuing alternative dispute resolutionmethods before instigating legal proceedings.The specific ADR method, or methods, aredecided on by the parties; the clause may alsospecify what happenings might trigger theclause (e.g. whether a party would need towrite to the other with an invitation to mediate)and suggest timelines for proceedings.In many cases, the main challenge in draftinga dispute resolution clause is one of attitude –some people erroneously believe that a disputeresolution clause will inhibit their right to legalrecourse. While it is true that an arbitrationjudgement may affect parties’ right to a legalhearing, this is only one kind of dispute resolutionmethod; a clause that prescribes mediationor neutral chairing leaves the right to a courthearing intact. The other common perceptionis that asking for a dispute resolution clause is asign of weakness. Considering how frequentlydisputes occur in business, I take the viewthat ‘jaw-jaw before law-law’ is actually a verypragmatic, cost effective and respectful way ofworking. It can certainly take a lot of strengthand self-awareness to acknowledge that youcould face problems, and to plan a way ofsolving them that preserves a businessrelationship.people do not like to be seen as sayingone thing and then doing another, so a highproportion of parties with ADR clauses will usethem before litigation is even a realistic option.I know of many cases where parties formerly indispute reflect on their experiences and saythat the ADR clause gave them a chance to‘breathe’ and really think about things in themiddle of a tense dispute.What is the best form of dispute resolution inyour opinion - arbitration or litigation?Both forms have strong merits, and can be anobviously appropriate course depending on thecircumstances at any given time. In somecases, such as where a crime has beencommitted or where parties are seeking to seta legal precedent, litigation may be the onlyoption available (though for some crime andalso for clinical negligence, there is a recentmovement towards mediation being usedas part of a process of restorative justice).However, the full spectrum of ADR methodsincluding arbitration, mediation and neutralchairing also have an important role to playin getting disputes solved. Around 70% ofcases brought to mediation settle within themediation window, with a further percentagesettling at a later date without resorting tolitigation. LMContact Details:Gregory HuntEmail: ghunt@cedr.comTwitter: @GregoryH_CEDRTel: +44 (0) 20 7536 6027Please tell me about the problemssurrounding the enforceability of anagreement to ADR.Agreements reached through ADR are onlybinding once settlement is recorded in writingand signed by all parties, whose representativeshave the authority to settle. Psychologicallyspeaking however, setting out a writtencommitment to ADR is very powerful – generallywww.lawyer-monthly.com