Industry Focus

The desire to avoid litigation appeals to both the insurer and insured.  ADR procedures can be applied to insurance matters ranging from medical, auto, home, life and disability to commercial property coverage and commercial liability protection. For the insurer, the traditional use of litigation risks the possibility of losing the matter. This not only results in financial losses, but can set precedent for coverage that will govern future claims and can adversely impact coverage for other policyholders. The use of mediation for instance can result in mutually beneficial solutions for both the insurer and the insured. For the latter, it also provides the unique opportunity for grievances to be heard and for them to have decision making power in the resolution of their claim.

Disputes arising in the banking and financial sectors can include a broad array of claims such as debt recovery, foreclosure actions and claims based on negligence or breach of duty of care. The use of non-adversarial, non-combative ADR methods for resolving disputes could mean that a deal is more likely to be achieved and business relationships preserved. It also affords banks and other financial institutions an opportunity to deal with borrowers in financial difficulties outside of the usual enforcement remedies available which will include debt proceedings, securing judgment, appointment of receivers and possibly bankruptcy proceedings.

In the multi-billion-dollar energy industry, the economic stakes of regulatory decisions and business dealing, and the cost of regulatory or judicial delay are enormous. More and more, stakeholders in these fast-paced, competitive energy markets find that better and quicker decisions are increasingly crucial. ADR leads to better and often quicker decisions, enhanced certainty, more procedural flexibility and potential cost savings.

A myriad of issues confronts the manufacturing sector such as design development, brand protection, managing supply chains, expanding production, local market distribution and global export. When disputes that arise out of these matters are taken through the court system, the judge that is assigned to the case, may have little to no industry knowledge and experience or exposure to the contracts or laws and regulations that apply to it. The lack of an expert decision maker in litigation is the principal reason why ADR methods such as arbitration is better suited to resolve these types of industry specific disputes. The parties can agree in their contract to appoint an experienced arbitrator who has knowledge of the industry involved in the dispute, who cognizant of the “customs” or “usages” in the trade, has expertise in the field  and is familiar with the applicable legal and regulatory framework, if relevant to the dispute.

ADR techniques can be applied to resolve disputes that arise in the services sector such as whole sale and retail trade; repair of machinery, vehicles and personal and household goods; hotel and tourism industry; transport; education, health, transportation, events and many other service-oriented fields.

Family law comprises of matters such as divorce, custody of minor children and visitation or access, support and division of property. Divorces can be emotionally and physically demanding for the parties involved. Anger and disappointment are common feelings that may arise during divorce negotiations. Parties may have difficulty communicating with each other about crucial issues surrounding the dissolution of the union. The use of ADR methods such as mediation can mitigate the stress of a costly and lengthy divorce trial. Further, the use of a neutral facilitator creates a constructive and confidential atmosphere for discussion and can preserve an amicable and sustainable relationship between the parties. This is especially important when children are involved. Parties have control over decisions and the opportunity to tailor an agreement that is specific to their circumstances.

In today’s environment, a single major employment dispute can result in the erosion of substantial assets because of legal fees and a potential jury award. The task of handling the dispute can distract and unnerve an otherwise strong and efficient management team. This situation warrants a strategy that eliminates the possibility of disruption, and the financial cost to business. The inclusion of ADR mechanisms such as in contracts of employment, personnel manuals and employee handbooks are becoming more common. It can be used in the early stages of employee grievances or potential disciplinaries to help promote resolutions without the need for formal action. It is particularly helpful where the employment relationship is continuing to ensure there is a good working relationship moving forward.

Disagreements can arise at any stage of the maritime cycle, from newbuilding and repairs to salvage, pollution, bunker and cargo claims. Charter parties are also a major source of disputes. Arbitration has been widely adopted to resolve maritime disputes.

ADR procedures can be applied to many other commercial matters including intellectual property disputes, commercial transactions, trademark licenses, franchises, computer contracts, multimedia contracts, distribution contracts, mergers, acquisitions and joint ventures, publishing, music and film contract, partnership and shareholder, sports, medical and technology.

Mediation and Arbitration has also been widely used in procurement disputes globally. In Trinidad and Tobago, the newly reformed Public Procurement and Disposal of Property Act (2015) that is currently being implemented, mandates the use of alternative dispute resolution as a mechanism for dispute resolution.