2012 ARBITRATION AND MEDIATION

Overview

This course familiarizes participants with alternative methods of dispute resolution (ADR). The first part of the course examines the legal issues involved in international commercial arbitration; the second half introduces participants to the goals and techniques of mediation. The emphasis throughout is on the development of practical skills.

This program is designed for judges, lawyers, non-lawyer professionals, executive branch government officials, judicial officers, officials of judicial and legal training units, and court administrators.

Course Outline

Pros and Cons of International ADR

• Conciliation, arbitration and mediation versus litigation in the country of one party or in a third country
  
• Arbitration between private parties and governments or government agencies

The Negotiation Process

• Different approaches to negotiation (creating value vs. claiming value; structuring a deal vs. resolving a dispute)
• Assessing the interests of both parties
• Opening offers
• Strategic concessions
• Why negotiations fail
• Breaking deadlock
• Negotiating a dispute resolution clause (participants will engage in negotiation exercises)

How Mediation Works

• Mediation defined
• Why mediation
• Roles and attributes of a mediator

Mediation Tools and Principles

• Changing patterns of communication
• Intervention principles
• Listening and questioning skills
• Stages in mediation
• Problem identification
• Agreement writing

The Role of Advocate and Litigant

• How to prepare for the mediation
• How to devise a settlement strategy
• How to advocate for yourself and your client
• How to manage your client during mediation

Legal Issues in International Arbitration

• National Arbitration Laws Treaties, including the New York Convention and ICSID Convention Choice of governing law
• Validity and scope arbitration agreements
• Role of the courts: judicial review and enforcement of awards; judicial assistance in the arbitration process
• Investment disputes
• Sovereign immunity

The Arbitral Process

• Designing the process: drafting the arbitration clause
• Choice of rules of arbitration
• Conduct of proceedings: initiating arbitration, constituting the tribunal, establishing terms of reference, discovery of documentary evidence, interim relief, submitting testimony, hearings, and awards
• Arbitrator ethics and challenges to arbitrators (participants will play role of counsel or arbitrator in a simulated international arbitration)

Course Advisor

Anne Marie Whitesell is Of Counsel at Dechert LLP. Before joining Dechert, Ms. Whitesell was Secretary General of the ICC International Court of Arbitration from 2001 to 2007. Ms. Whitesell supervised approximately 1,100 international arbitration cases each year involving parties from over 120 countries. She has practiced with law firms in both the United States and in France and was a lecturer at the Université de Paris I, Panthéon-Sorbonne and the Institut de Droit Comparé (Université de Paris II). She is admitted to the New York State Bar, the Bar of the District of Columbia, and to the US District Courts for the Southern and Eastern Districts of New York.