Herbert Smith Freehills Kramer Relaunches ADR Practical Guides And Conflict Management Toolkit

We are pleased to relaunch our ADR Practical Guides series and accompanying Toolkit on Improving Conflict Management. Together, these resources offer in-house counsel and senior executives a complete framework for making better use of alternative dispute resolution, from understanding the basics to embedding ADR culture across an organisation.

First launched 10 years ago, these resources have been updated and expanded to reflect the evolving dispute resolution landscape, including the growing willingness of English courts to order parties to mediate, the increasing use of ADR in specialist contexts such as employment and tax disputes, and the continuing pressure on organisations to resolve disputes faster, more cheaply and with less disruption to business.

ADR - most commonly mediation - has become a central feature of commercial dispute resolution and has enormous potential to save time and money. However, optimising its use can require education, experience and sometimes a change in mindset. Our updated suite of resources is designed to help.

ADR Practical Guides

The series comprises eight guides, each focused on a distinct aspect of ADR. Together they form a complete reference tool for anyone involved in managing disputes. We begin with an overview of the most commonly used ADR processes before moving through the practical stages of mediation and on to specialist contexts.

Guide 1 — Common ADR processes: an overview

A snapshot of the most commonly used processes, highlighting the main advantages and disadvantages of each. It covers mediation, the hybrid processes of MedArb and ArbMed, early neutral evaluation, expert determination and adjudication. 

Guide 2 — Introduction to mediation: what it is and how it works

A high-level introduction to mediation, covering key advantages, the mediator's role, how to propose mediation, and what happens on the day. 

Guide 3 — When to mediate

Factors and questions to consider when identifying suitable opportunities to mediate in the lifecycle of a dispute.

Guide 4 — Selecting a mediator and drafting the mediation agreement

Steps to take once parties have agreed to mediate: how to select the right mediator and how to structure the mediation agreement to ensure the process runs smoothly.

Guide 5 — Preparing for mediation

Preparation is one of the most important factors in a successful mediation. This guide is a practical checklist of the steps parties should take in advance, including preparing position papers, agreeing the bundle of documents, and ensuring the right people attend on the day.

Guide 6 — Use of mediation with arbitration

This guide examines the use of mediation alongside or in combination with arbitration, including hybrid MedArb and ArbMed processes and the opportunities and risks each presents. It is highly relevant for parties whose contracts contain arbitration clauses who wish to explore settlement options without abandoning their arbitral rights.

Guide 7 — Mediating employment and workplace disputes

This guide explains how mediation can be used to resolve employment and workplace disputes, which may need a different approach to commercial mediations. It also examines specific mediation and conciliation schemes offered by the Employment Tribunal and ACAS.

Guide 8 — Resolving disputes with HMRC

This guide explains how and when ADR can be used to seek to resolve disputes with the UK tax authority, HMRC and the different considerations that arise.

Improving Conflict Management: The Toolkit

The toolkit takes a step back from individual disputes and focuses on how organisations can embed a systematic approach to ADR across their operations.

The toolkit covers the following key areas: 

1. Conducting an ADR audit of current usage of ADR – examine the types and frequency of disputes, current costs, the capability of the in-house legal team, and the approach of external lawyers.
2. Designating an ADR Lead – organisations that achieve the greatest success in embedding the use of ADR are likely to have a designated senior in-house counsel to lead the organisation's efforts. 
3. Implementing Early Case Assessment systems – consider embedding processes to analyse disputes in a systematic way at an early stage to help make informed decisions about the appropriate dispute resolution strategy.
4. Training and education – ADR-specific training for in-house counsel and case handlers is vital to promote and encourage the use of ADR.
5. ADR metrics – how to generate useful metrics on external legal cost savings, management time saved, the stage at which disputes settle, and the impact of ADR on business relationships.
6. ADR clauses in contracts – different ways of embedding ADR into contracts, with practical guidance and drafting tips. 
7. Engaging stakeholders – a senior management ADR sponsor can be a game-changer. Targeted guidance on working with stakeholder groups, overcoming objections and aligning external lawyers with internal ADR objectives.

Access the guides

We invite you to explore all of the ADR Practical Guides and the Improving Conflict Management toolkit, available now on the Herbert Smith Freehills Kramer ADR Hub and also on the Key Publications page on the ADR Notes blog.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.