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Negotiation has been defined as any form of direct or indirect communication

whereby parties who have opposing interests discuss the form of any joint
action which they might take to manage and ultimately resolve the dispute
between them

MED-ARB is a combination of mediation and arbitration. It is in use in United


States in two distinctive forms. In the first, the mediator, by agreement, acts as
both the mediator and arbitrator pursuant to a binding arbitration agreement.
If there are still unresolved issues after the mediation, the matter goes to
arbitration proceedings. In the second the mediator and arbitrator are
separate individuals.

MED-ARB is useful when the parties eventually want a binding, final decision,
but they also want the opportunity to settle some or all of the issues in the
informal mediation process.

Expert determination is founded in contract. An independent third party will


act as an expert rather than judge or arbitrator, and is appointed by the parties
to decide the dispute privately. There is no right of appeal and the experts
determination is final and binding on the parties save usually in the case of
fraud or manifest error. Parties will make written and oral submissions to the
expert and he or she will then give a binding decision on the case. It is
particularly used in disputes concerning valuation (for example rent reviews,
share valuations or price adjustments) or technical disputes across a range of
sectors (for example IT, accountancy, supply contracts, oil and gas).

The expression Expert is much more commonly used to refer to expert


witnesses. In expert determination, the appointed expert is not in any sense a
witness.

Expert determination clauses govern the jurisdiction of the expert and the
conduct of the determination. They should typically cover:

the issue(s) to be determined (this must be carefully drafted)


the experts qualifications, appointment and his duty to act
independently, and as an expert not an arbitrator
how the reference will be conducted
how the decision will be issued (in writing, with or without reasons) and
that it will be final and binding save in the case of fraud or manifest error
provisions as to the due date for payment and the power to award
interest (and sometimes costs)
payment of the experts fees (these are usually shared between the
parties with joint and several liability should one party fail to pay)
Typically a panel of three neutrals is selected by the parties to become part of
the project team. The panel attends meetings, reviews essential project
documents and provides advisory recommendations to assist in resolving
disputes before they escalate.

Ordinary meaning of the word disputes or the word differences


should be given to those words in arbitration clauses.

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