Barrister & Company Secretary Caroline BuchanChambers of Miss C Buchan
on-line articles
Category1
Category2
January, 2012
March, 2012
November, 2012
March, 2013
February, 2015
on-line articles
RSS
Appropriate Dispute Resolution
3/3/2012 12:19:20 PM
I gave a talk last to some students last week on dispute resolution considering a career in Law. We discussed the options of becoming a solicitor or barrister and considered the possibility that an interest in dispute resolution married to another industry could make you a very good arbiter. It is possible to have what is known as a "portfolio career" that encompasses many different interests and skills throughout your life time.
 
Becoming a solicitor or barrister requires commitment not least sizeable financial one but if you are good you will earn that back very quickly. Currently the Bar Vocational Course costs between £10-15,000. 
 
Alternative dispute resolution dubbed "appropriate dispute resolution" by the ADR Hub can keep cases out of the courts and saves time, money and stress. 
 
Arbitration actually predates legal systems and courts. In Roman times litigation was really just private arbitration with the assistance of a magistrate known as a Praetor. In the Middle Ages English merchants used arbitration to settle disputes long before the Kings Courts began to enforce contractual obligations.   
 
Despite the Justice Secretary Ken Clark's recent comments that mediation should be used instead of resorting to the court process, mediation is already very widely used as a way to get quick and cost-efficient resolution of disputes to enable where possible a continuation of existing working relationships.
 
As a solicitor or barrister there is a professional duty to recommend mediation to your client unless there is a very good reason why it is not going to be appropriate.
 
A mediator is an independent and neutral facilitator who will help resolve a variety of contract and negligence disputes, family law matters and in employment situations disciplinary or grievance issues by examining the symptoms of and motivations for conflict. The interesting thing is getting the parties to agree to the process to begin with!
 
Mediation can be a good way of dealing with bullying, discrimination or harassment situations depending upon the nature of any allegations. Discrimination or bullying actions can range from unintentional misunderstandings and lack of awareness through to deliberate and malicious acts. ACAS dealt with nearly 18,000 employment disputes in 2010/11 through their pre-claim conciliation service which aims to deal with problems before they escalate to tribunal. 
 
Mediation is for the most part, and should remain I believe, a voluntary process where the mediator helps two (or more) people in dispute to find a solution to the issue that they can both live with; a win-win scenario. The mediator does not take sides or tell the parties what to do but shuttles back and forth between the parties helping each work towards a resolution. It is of course a form of negotiation. 
 
Arbitration is often used as a quick and relatively inexpensive way to settle contract disputes and final and binding if the parties agree. Parties signing a contract often agree to the use of arbitration. Contracts usually include a clause that the parties agree to comply with the arbiter’s decision, typically the phrase ‘binding arbitration.’ By choosing arbitration to settle disputes, the parties agree not to pursue their complaints in a court of law.
 
The actual process of arbitration and adjudication is much the same. Mediation through an arbitration hearing is similar to a court hearing. Each party brings evidence and witnesses before the agreed-upon arbiter and makes his case. The arbiter weighs the evidence and draws a conclusion, either deciding for one of the parties or proposing a unique solution.
The rise of international arbitration has seen a more enlightened approach in modern times. It was seen that international arbitrations had a major commercial advantage as a uniform process largely independent of the local legal systems. The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the 'New York Convention') has been adopted by many countries and is free from the intervention of any State. Interestingly though some states such as Argentina have recently been ignoring arbitration decisions so the party which wins the award is then forced to seek enforcement of the decision in that state.

 
Adjudication is currently used almost exclusively in the construction and engineering industry. The adjudicator is usually a construction or engineering expert appointed to give an opinion on the issue (sometimes technical) to allow work to carry on. It's a more informal process than going to court. It is not intended to be a complete legal statement, but to be a working interpretation of the contractual situation.  Generally arbitrators and courts will tend to support the adjudicator's decision unless there has been an obvious conflict with the applicable law.
 
Adjudication is preferred because it is seen as being fast and dirty, gives the Contractor certainty about his entitlement and enables some control to be kept over the solution to the dispute. 
The way forward is shown by the success of adjudication under the Housing Grants Construction and Regeneration Act 1996. The process could easily be considered as arbitration under the Arbitration Act 1996. So for instance, the rules of natural justice apply.

 
Expert determination is a procedure in which a dispute or a difference between the parties is submitted, by agreement of the parties, to one (or more) experts who make a determination on the matter referred to it or them. The determination is binding, unless the parties agreed otherwise and may have effect as a recommendation to the parties.

 
There is only a very limited basis to challenge the determination. It is therefore important that the parties select an expert with both relevant expertise and experience in addition to knowledge of the Determination process.
 
Sometimes the expert’s decision is not binding, but advisory. This is known as Expert Evaluation. Although not binding the evaluation often forms the basis of a settlement.  In contrast to mediation, a party cannot unilaterally withdraw from expert determination. It is ideally suited to multi-party disputes.
Expert Determination is ideally suited to disputes and matters of valuation and/or which are primarily dependent on technical issues e.g. does the computer match the specification; is the malfunction due to a design or a manufacturing fault; valuations of shares; rent reviews and contract performance matters. It can also easily be used in many other areas such as insurance wording disputes, sale of goods disputes, fitness for purpose and boundary disputes.
 
Although Expert Determination is an Alternative Dispute Resolution process, it can also be used when there is no dispute, but a difference which needs to be resolved for example the valuation of a private business.
In conclusion there are many and varied ways to avoid going to court and achieving a settlement and having a legal qualification is not everything.
1 items total
IntroductionPayment policyon-line articles