About our guide
We are seeing strong global recognition of and support for mediation and other ADR procedures as effective methods for resolving commercial disputes. Many jurisdictions now have a legal framework in place to regulate ADR procedures.
Mediation and other common forms of ADR
All of the jurisdictions listed in this guide recognize mediation as a key form of ADR. Whilst it’s generally the most common form of ADR, there are some exceptions – for example, conciliation is more popular in Brazil.
The adoption of The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) in December 2018 signaled an international commitment to recognize and enforce mediated settlement agreements across borders, with the aim of bringing certainty and stability to the international mediation framework. The Singapore Convention has been signed by well over 50 jurisdictions (including the UK, US and China), and is currently in force in 14 jurisdictions.[1] This will undoubtedly increase over the next few years.
[1] View the latest status of signatories to the Singapore Convention.
Besides mediation, many jurisdictions also recognize other forms of ADR such as conciliation, adjudication, determinations by experts, judges, third parties or dedicated bodies (the latter often connected with specific disputes) as well as some processes specific to certain jurisdictions. Some of these can be seen in this guide, in particular:
- Belgium (collaborative negotiations)
- Italy (negotiation with attorneys)
- the US (collaborative law)
- France (participatory procedure)
- Nigeria (mini-trial which is a form of evaluative mediation)
Increasingly, jurisdictions are using online dispute resolution processes and they are likely to continue on this path as jurisdictions digitize their court processes, especially for smaller claims.
Common questions around Alternate Dispute Resolution (ADR)
Is ADR generally voluntary?
ADR processes are generally voluntary, although the tide is turning in some jurisdictions. In England and Wales, a recent change in the Civil Procedure Rules gives the courts powers to order ADR and stay proceedings for that purpose. There are also certain requirements in Italy, Saudi Arabia and Slovakia.
There are a growing number of jurisdictions where court ADR is available and this can be mandatory. In some jurisdictions, court mediation or some form of judicial conciliation must take place before proceedings can continue (see Kenya and Senegal). In England and Wales, there is mandatory mediation for small claims and the court can order early neutral evaluation carried out by a judge.
Most jurisdictions recognize party autonomy and uphold agreements to engage in mediation (and other forms of ADR) by staying proceedings, but in others the only consequence is a remedy in damages for breach of contract.
When does ADR typically take place?
In the majority of cases, ADR can take place at any time before final determination by a court or via arbitration. Some jurisdictions offer specific incentives to resolve disputes via ADR (see China – where court costs are waived/reduced if settlement is achieved, as well as Jordan and Romania). There are also cost penalties in many jurisdictions, if the parties fail to engage in ADR at all, or fail to engage in ADR in good faith.
How does ADR affect existing or pending litigation or arbitration?
In some jurisdictions, engaging in ADR can suspend limitation/prescription periods for starting a claim in litigation or arbitration. Details of this can be seen in the entries for Austria, Belgium, Tunisia, China, Czech Republic, Latvia, Lithuania, Madagascar, Netherlands, Portugal, Romania, Slovakia, Spain, Sweden and the UAE. However, this does not apply to all jurisdictions, most notably England and Wales, Northern Ireland, Scotland, US and Ukraine, where engaging in ADR does not stop the limitation period running, and where it is important to consider and protect (where necessary) the limitation/prescription period if entering into ADR. This variance in rules means that it is a key point to check early on in the process when litigation might be in contemplation.
In many jurisdictions, engaging in ADR can lead to the suspension of ongoing litigation or arbitration proceedings. It varies between jurisdictions as to whether this is automatic, by agreement of the parties or whether the parties have to apply to the court for an order.
Is ADR generally confidential?
This guide highlights that in those jurisdictions based on common law principles (such as England and Wales, Scotland, Northern Ireland, Ireland, US, Singapore, Hong Kong, South Africa and Nigeria), ADR is generally subject to without prejudice privilege and is confidential.
There are many other jurisdictions where the concept of without prejudice privilege does not apply, including jurisdictions based on civil law but where ADR is still generally conducted on a confidential basis (including Brazil, Kenya, Hungary, Lithuania, Madagascar, Poland, Portugal, Qatar, Romania, the Kingdom of Saudi Arabia, Senegal, Slovakia, Spain, Sweden, UAE’s DIFC and ADGM courts and Zimbabwe). In some other jurisdictions (such as UAE’s onshore domestic courts, Mauritius, and Tunisia), there is no automatic confidentiality or without prejudice privilege and the parties have to enter into an agreement to that effect.
How are ADR resolutions enforced?
Once ADR resolutions have been reached, there are many different rules and requirements on enforcement.
In some jurisdictions, ADR resolutions are treated as agreements enforced between the parties (but not against third parties) under normal contractual principles. In others (for example Belgium and Finland), ADR agreements can be approved by the court, providing the same legal value as a court decision, albeit confidentiality is lost (see also Jordan, Morocco, Japan, Poland, Senegal, and Singapore).
© Eversheds Sutherland. All rights reserved. Eversheds Sutherland is a global provider of legal and other services operating through various separate and distinct legal entities. Eversheds Sutherland is the name and brand under which the members of Eversheds Sutherland Limited (Eversheds Sutherland (International) LLP and Eversheds Sutherland (US) LLP) and their respective controlled, managed and affiliated firms and the members of Eversheds Sutherland (Europe) Limited (each an "Eversheds Sutherland Entity" and together the "Eversheds Sutherland Entities") provide legal or other services to clients around the world. Eversheds Sutherland Entities are constituted and regulated in accordance with relevant local regulatory and legal requirements and operate in accordance with their locally registered names. The use of the name Eversheds Sutherland, is for description purposes only and does not imply that the Eversheds Sutherland Entities are in a partnership or are part of a global LLP. The responsibility for the provision of services to the client is defined in the terms of engagement between the instructed firm and the client.