Alternative dispute resolution has a huge amount to offer in this day and age with a variety of procedures capable of producing satisfactory results for far less money than a full blown dispute through the courts, and also so much more quickly.
Here we record various procedures. If you think they can help you, contact us!
Mediation is in the ascendancy. Why?
Because the costs of proceeding to a full court trial are huge and, furthermore, the time and effort involved in taking matters to that extreme are considerable.
It is faster than going to court
It is much less costly than going to court. Having said that all cases have to be prepared so that the parties know their strengths and weaknesses
It is a procedure carried out in co-operation and with a view to settlement.
The decision of settlement is that of the parties and not of a judge or arbitrator. No appeal is necessary. Having said that, the parties may agree in certain circumstances to ask a mediator to make a non-binding decision.
And what of the mediator? What qualities does he need? – The views of Adrian Leopard & Company:
- A mediator needs to be a nice guy – at least during the mediation proceedings.
- The mediator must be neutral and independent and act as an “honest broker”. There must be no conflict of interest, however remote.
- He must be professional, competent and up to date in the process.
- He must operate by a code of conduct.
- The mediator makes no judgement in the dispute; he does not express any opinion as to an outcome and he does not act as adviser to either party other than in relation to furthering the negotiations.
- He needs to make the parties feel comfortable.
- He needs to get the parties to react together in a spirit of co-operation.
- He needs to get the parties to recognise their own strengths and weaknesses.
- Above all a mediator needs to be an individual capable of lateral thinking
The ideal outcome for a mediation is for the parties to settle their dispute and walk away agreeing to do business again in the future.
Pie in the sky? In fact, no! It can be done.
What are the features of mediation?
- Voluntary other than in most exceptional circumstances
- The proceedings are entirely confidential
- Everything which goes on is without prejudice to any subsequent proceedings unless a binding settlement is reached
- The mediator will endeavour to ensure that each party understands the case of the other side and that he himself clearly understands the cases of both sides
- Given that mediation will inevitably involve compromise the mediator will endeavour to identify appropriate areas to enable the parties to focus on those
Where in the market place does Adrian Leopard & Company’s mediation service stand?
Whilst mediation is a potential route forward in all sorts of disputes, Adrian Leopard & Co specialises in commercial and insolvency disputes as this is their specialist field.
There is a great deal of ignorance as to the way things go in insolvency, and very often parties are advised to contest hopeless cases which would be much better settled before enormous costs result. The very fact of bringing parties together gets them talking. This enables misunderstandings to be ironed out, thereby avoiding cases being fought on false beliefs. Mediation is the perfect environment to highlight such issues and even if the mediation itself does not succeed, there is every possibility that the issues in a dispute will be narrowed and clarified significantly which may aid subsequent without prejudice negotiations to take place.
Because of the specialist nature of our service we will travel anywhere appropriate to attend a mediation hearing.
Sometimes a single mediator will suffice and on others a second mediator or mediator’s adviser may be required if there are complex legal issues involved.
Mediation is a process where parties can bring their disputes to the table with or without professional advisers; there is no specific requirement
Our fees and costs: we will provide a fixed price quotation for every case on an individual basis to include all preparation time, travelling time if necessary, and other disbursements as required. Our fees are payable equally by all parties and in advance. All our work is covered by our standard terms and conditions and we hold proper professional indemnity cover in relation to this activity.
Where the firm has acted in a mediatorial capacity, we will not act for either party subsequently without permission of the other until such time as any dispute between the parties has been resolved.
There is a standard form of agreement for mediation available on application.
In addition to acting as mediator we can also act for clients in a mediation situation
Other forms of dispute resolution. Those mentioned below operate in very similar ways to mediation but produce different results as detailed.
Early neutral evaluation
This procedure is one where a neutral evaluator considers the points of a dispute and provides a non-binding recommendation as a result of a preliminary assessment of the facts, evidence or legal merit. The object of this exercise is to enable the parties to avoid further unnecessary stages in litigation or at the least create a forum for further negotiations
Procedural directions will normally be agreed between the evaluator and the parties although if agreement cannot be reached, the evaluator may fix his own procedural directions.
The parties may suspend the process and submit to mediation at any time and may, if mediation does not succeed, revert to evaluation.
Executive tribunal procedure
This is a procedure which is a more formalised form of mediation and sometimes known as a “mini trial”. A panel is formed consisting of one or more representatives from each party to the dispute, persons not previously involved in the dispute, and a neutral mediator as chairman.
Each party to the dispute presents its case in a formal manner to the panel which eventually retires to consider the position, without or without the neutral chairman, as will have been previously agreed. The parties may then mediate and attempt to agree a settlement.
This is a procedure where an independent third party acting as expert rather than judge or arbitrator is appointed to decide the dispute. His decision is final, thereby closing the matter. It differs from the early neutral evaluation because the result is a binding decision.
It differs from arbitration because it is less formal and is normally not subject to “due process”, namely the fairly lengthy and time consuming procedural issues more normally connected to litigation and formal arbitration.
This is a formal procedure conducted pursuant to the terms of the Arbitration Act 1996 and produces a binding result. As a result of its formality it is a more complex and time consuming process and would normally be conducted in accordance with “due process” but still quicker and less costly than going to court for a full trial.
Mediation followed by arbitration
A procedure which can be adopted by parties in case they find they cannot resolve the dispute by mediation is to enable the mediator to decide the issue, either by formal arbitration or on the less formal basis of expert determination, should the mediation fail.
This procedure has its good points and its less good points. Certainly a mediator by the time he has reached a “failed mediation” moment will have an excellent grasp of the dispute and the issues involved. This will enable a considerable amount of time to be saved and therefore cost as against the appointment of a new third party to act as arbitrator or expert.
It has a perceived disadvantage which is that the mediator may well have heard statements and comments made to him privately which would not have otherwise come to the knowledge of the deciding neutral. This could be a good or bad thing and could in such circumstances stifle discussion with the mediator. It is therefore a process to be considered carefully before it is adopted as part of the mediation contract.
Independent counsel’s opinion
A form of resolution which has been around for many years and which is more applicable to decisions based on judgements of law is where the parties submit a joint instruction to a barrister for the expression of a legal opinion based on the facts.
This could take place as part of an overall dispute resolution procedure where a legal issue becomes a central point, and not necessarily as a basis to solve a dispute in toto.
Acting as an expert witness
Moving away from the foregoing procedures, Adrian Leopard & Co can undertake appointment as an expert witness in relation to insolvency matters or as chartered accountants in appropriate disputes. This could be a voluntary process between parties to a dispute or as a result of a court order where the parties must either instruct a single expert who will advise the court or each side may instruct its own expert to act of its behalf.
All types of procedure mentioned here are subject to their own agreements which explain the procedures and how they operate. The issue of costs will be dealt with in every case individually.
Adrian Leopard & Co is happy to discuss all forms of dispute resolution with interested parties so that the form most suitable may be selected and implemented. What must be remembered is that outside formal court procedures, parties have a virtually absolute discretion to determine the best forward in the settlement of disputes