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The Expert in Dispute Resolution Let's assume our Client 'Mr C' is off to Litigation or Arbitration. The Quantum Expert produces the calculations, finds the invoices, finds the timesheets, and the Programmer has produced his or her charts that support the arguments over time and delay issues. Our Mr C is looking forward to the big day when justice will be done. Let us stop for a moment and ask ourselves what this means. Firstly it means different things to different people, but most importantly it means that the Judge or Arbitrator will apply the rule, or rules of law to the facts of the case and produce a judgement. Let us for one minute consider that the above scenario takes a different course and that just prior to the hearing our Mr C says I would rather try an Adjudication to see if I can wrap up the matter, before spending the money on full proceedings. It I am sure happens. What of our Quantum Expert and Programmers work I ask? Consider an alternative scenario; Mr C decides on Mediation. Again he wishes to use the Quantum Experts calculations and the Programmer's coloured charts. Firstly the Expert's are still needed to support the arguments in Mediation. Likewise the Expert's are required in Adjudication. What is significant is the length of time in which they make their case and level of detail they can put forward. A Mediation is over in three days or less. An Adjudication usually comes to an end after 28 days but they have been know to run longer. The point is that a convincing case needs to be put forward by the Expert's to suit the time frame. The point of Mediation is to find a settlement that is agreeable to both sides. It can be described as a 'sack of cash' that will change hands and make the matter go away. It bears little or even no relationship to the merit of the case, least to the concept of applying the rules of law to the facts of the case. Thus in a Mediation it is important that the Experts Report is crisp and capable of conveying its arguments within the time frame. There is no point in great detail however good if it cannot be communicated within the time frame. Similarly, Mediation is a means to a compromise so careful selection of arguments is necessary. It is often not a result in accordance with legal reasoning Careful planning which supports the desired settlement and not necessarily the legal merits of the case is necessary otherwise the Mediation could fail. The Mediation of a commercial dispute is successful if the parties settle. The Adjudication of a dispute as in construction cases is usually final if the parties are satisfied that they succeeded in their argument and can understand the reasoning. It may be rough justice but if it gives parties what they want in broad terms then that is usually the end of the matter. In Arbitration the parties go on exchanging submissions until they have got everything off their chest, and then the Arbitrator takes his or her time to reach a decision applying the law strictly. I have portrayed Mediation so far as a 'sack of cash' type solution however it is often more than that in its own way. It can be argued that Mediation can 'reach the parts other dispute resolution techniques can't'. Mediation can result in a settlement that preserves commercial relationships. A full blown Arbitration or Litigation can and usually does blow apart any hope of the parties working together again. A settlement in Mediation can be tailored or moderated so that losses are recovered sufficiently and that parties are still able to work together. By way of example consider the case of Multiplex and Cleveland Bridge where His Honour Mr Justice Jackson decided the points of law relevant and the parties used Mediation to sort out the money side. In construction it is not uncommon to Mediate over the money as there is no point of principle to be won or lost. Contractors and Clients often settle money matters more amicably and speedily than a Judge once they are told who's liable. Parties can take into account, or integrate future trading options and reach settlement more speedily. However, consider for one moment, if the issue is over an industrial illness liability and insurers will be establishing premiums, as well as making compensation payments for years to come then, the matter is very different one, and one for the Courts alone, as the judgement will need to provide guidance to many for years to come. Conversely in domestic disputes Mediation is often preferred for reasons that I hope are obvious. Roland Foster MSc MCIOB Roland has is a Senior Quantity Surveyor at DGA and can be contacted on 0207 518 0326 |
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