BOOK REVIEWS

ADR a n d C o m m e r c i a l D i s p u t e s , by RUSSELL CALLER (ed.). Published

by Sweet & Maxwell, London (2002, 245 pp. + index). Price £85. ISBN 0-
42176300-0.

For litigation and arbitration specialists this book has an unorthodox approach: it
does not address ADR from a procedural point of view, as an alternative to
traditional mediods of dispute resolution, but rather from the consumer's, the
businessman's, viewpoint. It aims to continue the education process of end users
and their professional advisers in what General Editor Russell Caller in his
'Introduction' calls: 'the real value of ADR'. He strongly believes, Caller writes, 'that
once these end users understand the time and money savings that can be achieved,

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they will jettison the old adversarial court approach and value the new change'. He is
seconded in this crusade by a team of 17 ADR practitioners who are experienced
mediators and specialists in their respective fields of commercial law.
Preceded by a brief general chapter ('ADR: What is it and What are the Pros
and Cons?', written by Simon Davis, who is brave enough not to dodge the
provocative question 'Why is ADR seldom used?'), each of these authors has
contributed a chapter on the use of ADR in their specific fields of practice. This
design of the book stems from the General Editor's (not commonly held) belief
that the greater the knowledge and experience the mediator has in relation to die
subject matter of the dispute, the greater the understanding of the dispute and thus
the greater the chance of the matter being resolved.
The advantage of using such a team of experienced practitioners and expert
professionals on a wide range of practice areas is obvious. Each chapter is written
with an insider's knowledge of the subject matter that can be the subject of a
commercial dispute within that particular field, be it banking, employment,
insolvency, insurance, IT, shipping, or landlord and tenant disputes, to all of which
(and more) separate chapters are devoted. The changing attitude to the use of
mediation in banking disputes, for instance, is described on the basis of actual
experience and discussions with bank managers. In the chapter on employment
disputes the mediation process is compared with die conciliation process offered
through AC AS (the Advisory, Conciliation and Arbitration Service). The
importance of flexible and creative solutions that cannot be reached by court
litigation or arbitration in franchising disputes is illustrated by reference to a non-
competition covenant, etc. The practitioner's angle of incidence makes this book a
very valuable one. Its practical usefulness is further enhanced by the final chapter,
which contains a case study of a particular wills and probate dispute, which,

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although summary, gives a good impression of how mediation actually works.

There is also a slight disadvantage, however, in the design of the book as a string
of self-contained and somewhat specialized chapters. Some of the aspects mat form
essential elements in any discussion on ADR, irrespective of whether it concerns the
principle, the process or the practice, are addressed in more man one chapter.
Sections entided 'What is ADR?', or 'Introduction to ADR Generally', or 'The Role
of ADR' etc., recur in many a chapter. Observations concerning the advantages and
disadvantages of ADR generally over arbitration, litigation and/or unassisted
negotiation are dius repeated once and again, without obvious need as far as me
specificity of the subject matter of the pertinent chapter is concerned. I concede that,
given the structure of the book, which focuses on specific practice areas mat will
create commercial disputes, mis is to a certain extent inevitable. But a more

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comprehensive introductory chapter about the concept and application of ADR in
general might have limited the degree of what now seems unnecessary repetition. At
the same time a more elaborate description of the ADR process might have
precluded such absolute statements as that immediately after the parties' opening
statements '[t]he most important work . . . is men done in "caucus". Wimout
denying the importance of the 'caucus' in ADR I strongly believe mat in actual
practice plenary sessions where bom parties are confronted wim each other and
their respective standpoints are at least as important and frequendy used.
In Mr Davis's general chapter a well-known transadantic difference of
perception is highlighted, viz. whemer ADR includes arbitration. The continental
view is that it does not, whereas in the United States arbitration is commonly
considered to be an out-of-court and merefore alternative dispute resolution
method. Mr Davis's reasoning in this regard is neidier crystal clear nor convincing,
it seems to me. His brief definition of ADR ('a form of facilitated setdement,
which is confidential and without prejudice') seems adequate enough. He adds
that '[b]ecause it is a form of settlement process the client is not at risk of being
bound to an unfavourable outcome by a third party's decision'. But how can mat
statement be reconciled with the opening statement of the same paragraph that
'[i]n order for this book to be useful to a range of practitioners the acronym ADR
is defined as including arbitration'?
These minor critical observations do not alter the fact that Mr Caller and his
highly qualified team have succeeded in what tfiey have set out to do, i.e. in their
own words, to write a book 'which can be picked up at ease and can be "dipped
into" quickly and easily to provide the reader with the practical information
necessary to advise clients [or to decide, I might add, PWE] which form of ADR
should be used to assist in the resolution of die particular dispute'. I fully concur
wim Sir Gavin Lightman, who recommends the book in his 'Foreword' as a 'first
port of call' for those considering the use of mediation and otfier forms of alternative
dispute resolution in the wide range of situations covered by it (although £85 may be
considered a high price for a first port of call to just quickly dip into . . . ) .

Piet A. Wackie Eysten,

The Hague