Mediation - The future for personal injury claims?

Concluding a personal injury or clinical negligence claim on behalf of a claimant is often a bittersweet victory. Even after achieving the best possible outcome for the claimant, ultimately, the claimant still has to live with the consequences of another individual's negligent act which caused them harm.

In my experience, there often remains resentment over why the accident occurred in the first place and why the claimant had to go through an often lengthy and stressful litigation process to succeed in recovering a fair level of compensation. Regardless of what that sum of money ultimately is, the fact remains that no amount of money can take away those negative emotions.

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Charity disputes and ADR

The recent case of Hussain v Chowdhury [2020] EWHC 790 (Ch) makes clear that, before giving permission to commence charity proceedings, the courts expect the parties to actively engage with alternative dispute resolution (ADR) procedures in trying to resolve their dispute.

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Dispute Resolution Trends in Asia for 2021

The Year of the Ox represents a fresh start and an opportunity to ‘turn things around’ (牛转乾坤) for the better.1 The question considered below is what will the ‘Niu’ (牛)2 Year hold for in-house counsel operating in Asia and tasked with resolving commercial disputes?

Naturally, there will be disputes relating to COVID-19 and efforts to contain its spread. These will often be resolved through negotiation, particularly if the relevant contract clearly allocates the risk between the parties of force majeure events. Some long-term contracts, however, may need to be renegotiated as a result of turbulence in the market. Any deadlock in the negotiations could potentially be resolved through arbitration, although that cannot be assumed and will depend on the precise terms of the contract. Other types of disputes that could feature over the coming months include environmental disputes relating to the decommissioning of oil and gas facilities, M&A transactions that have gone sour, and private equity deals that are being unwound. With that said, this is obviously not an exhaustive list, with commercial disputes being as varied as the contracts from which they spring.

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Mediation Underway to Avert Possible Strike That Could Affect Norwegian Offshore Fields

Mediation is starting Monday on the wage deal between the oil workers' union SAFE and the Norwegian Oil and Gas Association in a bid to avert a potential strike that could shut down production from several offshore oil fields in Norway.

"This can potentially lead to a strike which could affect activity at the terminal at Mongstad. The tariff agreement in scope for mediation is the Oil Agreement - Oljeoverenskomsten 224. The agreement is between YS/Safe, Negotia, and Norwegian Oil and Gas Association/Norsk Industri," Equinor said Sunday evening.

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Singapore’s mandatory breach notification regime is now in force

From 1 February 2021, most of the recent amendments to the Personal Data Protection (Amendment) Act 2020 (No. 40 of 2020) are now in force. The amendments update Singapore's regulatory framework and seek to balance economic needs with the protection of consumers' data rights.

The amendments have four primary aims:

  1. Strengthening consumer trust through organisational accountability;

  2. Ensuring the effectiveness of enforcement;

  3. Enhancing consumer autonomy; and

  4. Supporting data use for innovation.

Some key sections, including those covering data portability and the increase in the amounts of fines, are not yet in force but we expect that they will be implemented this year.

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Huawei agreeing to ‘mediation’ with Verizon a positive gesture?

Chinese telecom giant Huawei Technologies has reportedly agreed to “private mediation” in one of the two lawsuits it brought against US carrier Verizon over patent royalties, in what could be a positive development in the Chinese firm’s troubled standing in the US.

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UK Commercial Disputes: Winter Newsletter

2020 was a difficult and uncertain year, with unprecedented challenges across the globe, changing the world as we know it. At the start of 2021, the country remained in lockdown and Brexit materialised - with a deal - posing a further seismic shift. It remains unclear what the full effect of either will be on the economy. On the plus side, the active vaccination programme may offer us a route out of the pandemic. But one thing is clear, lawyers are resilient and our flexible fee structures and case funding options prove more important than ever. We are here, ready to help.

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Ireland: New Code Of Practice Overhauls Workplace Bullying


It's time to review all "Dignity at Work" policies and introduce updated "Anti-Bullying" policies to comply with the recently published "Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work" ("the Code"). The Code repeals the previous Health and Safety Authority (HSA) and Workplace Relations Commission (WRC) Codes of Practice and introduces new procedures for the management of workplace bullying.

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Eamon Harrington: The rise in mediation and remote mediations during Covid-19 restrictions

Eamon Harrington, dispute resolution partner at Comyn Kelleher Tobin, looks at how Covid-19 and Lockdown 3.0 is having an impact on the court system and on mediations to resolve disputes.

The President of the High Court earlier highlighted the obligation of all stakeholders to ensure that the administration of justice is not brought to a standstill because of Covid-19.

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Snapshot: mediation procedure in Austria


Procedure

Counsel and witnesses

Are the parties typically represented by lawyers in commercial mediation? Are fact- and expert witnesses commonly used?

It is standard practice that parties in commercial mediation are assisted by lawyers. In cases characterised by a high degree of (technical) complexity, it is also quite typical that the mediator is supported by expert witnesses. Fact witnesses are only rarely seen in commercial mediations.

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ICC Mediation

The ICC International Center for ADR proposes services including expert appraisal and dispute boards, which can be used separately, successively or concurrently. The ICC International Center for ADR has noted that there has been a growing use of the ICC mediation rules due to the pandemic. That said, the use of mediation to resolve international disputes still pales in comparison to the use of arbitration, with 45 ICC mediations registered in 2020 as compared to 946 ICC arbitrations.[1]

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Nicaragua Needs International Mediation

November seventh is just around the corner. The great opportunity to peacefully and democratically channel the serious social and political conflict which arose in Nicaraguan in April 2018, will inexorably arrive in these coming months. So much suffering and so much pain produced in that tragic month, must have its turning point that day. So many demands contained in the protests of those days, could have their relief and their expression in the citizen vote, as it should be.

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Further Guidance on Conflicts of Interest in International Arbitration: The Role of Experts

A recent English Court of Appeal judgment provides important guidance on the role of expert witnesses in international arbitration, with an emphasis on potential conflicts of interest and duties owed by expert witnesses to their clients.

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ICC Launches Revised Arbitration Rules for 2021

Key Points:

  • To increase transparency, parties must disclose “the existence and identity” of third-party funders.

  • To increase efficiency, arbitral tribunals may decide to conduct hearings remotely, irrespective of any objections from the parties.

  • New provisions allow the joinder of additional parties and the consolidation of multi-party or multi- contract arbitrations.

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We're not going back to business as usual

The coronavirus has demonstrated the shocking fragility of the justice system in a way I expect none of us would have foreseen at the close of 2019. Who would’ve thought that we’d wake up one day to find that months of hearings, conferences and trials, some of which had been scheduled years ago, had been administratively adjourned sine die? Or that there would be applications of critical personal and financial importance to our clients that the courts would refuse to hear because their subject matter was not among those listed in a sweeping procedural order issued sua sponte?

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International Mediation: Next Practice

In 2020, as the covid-19 pandemic brings the world to a near-standstill, the moving imagery of the tightrope-walker is more compelling than ever. Caught in this ongoing moment of uncertainty, we are being asked to reimagine many things – how we work, how we socialise, how we travel, and how we live as family units. We are also being asked to reimagine how we manage conflict – from the kitchen table to the boardroom table.

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Legal Problems between Business Partners Can be Resolved with Mediation Tools in Costa Rica

The two types of companies most used in Costa Rica are the Public Limited Companyand the Limited Liability Company. In the first, the owners are known as shareholders and in the second, as partners.

These people or companies become partners in two ways: either from the incorporation of the company, where each one agrees to contribute capital in the new company (or it can also be through assets or contributions in kind); Or, they can acquire the category of partners in a company that is already going on because they bought shares or quotas.

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What happens if I am unhappy with an adjudicator's decision?

When a party is unhappy with an adjudicator's decision they really have two options:

  1. Challenge Enforcement of an Adjudicator's Decision - When a Decision is issued, if the paying party does not pay, then enforcement proceedings require to be raised. These proceedings will be in court. If the court enforces the decision then the paying party will require to make payment. If the court does not enforce the decision, the decision will become void.

  1. Final Determination - when either party are unhappy with the decision, and there are no grounds to challenge enforcement the only option is to seek to have the matter finally determined by the court (or if the contract provides, arbitration). These proceedings are not an appeal but instead a full rehearing of the claim. In the interim the adjudicator's decision is unfortunately binding and the adjudicator's decision requires to be paid pending the outcome of any final determination proceedings.

Care should be taken to review contract terms as some contracts require a party who is unhappy with an adjudicator's decision to issue what is known as a Notice of Dissatisfaction. This is a notice which sets out that the party is dissatisfied with the decision and intends to raise proceedings to have the dispute finally determined. This requirement is most commonly found in the NEC form of contract, which requires a Notice of Dissatisfaction to be issued within 4 weeks of the decision, but even if the contract does not require it, it is good practice to issue such a notice.

Lastly, where a party does not agree with a decision they require to reject the decision in full. They should not accept and reject the decision at the same time. For example if a party wishes to ask an adjudicator to correct an issue with the decision under the slip rule but also challenge the enforcement of the decision, they should sufficiently reserve their rights to challenge the decision when making the request for the correction to be made. If they do not do so it could be argued that they have accepted the decision as valid. This is known as the doctrine of approbation and reprobation.

Next week we will look at issues surrounding enforcement of the adjudicator's decision in more detail. If you haven’t read our previous adjudication blogs they can be found here. Our commonly used terms glossary for adjudication can be found in our week two blog.

By Julie Scott-Gilroy

Trademark Litigation In China, 2021

China has a comprehensive and integrated legal framework for trademark protection based on domestic legislation as well as international IP treaties and conventions. The Trademark Law and its Implementing Regulations are the primary sources of law on trademark protection. The Trademark Law entered into force in 1983 and underwent amendments in 1993, 2001, 2013 and 2019 respectively.

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