The majority of our experts are trained in arbitration and can offer the service across all our technical disciplines. Arbitration is a generally a private process and the parties usually fund the arbitral process equally. Some care should be given to the location for the seat of arbitration as differing national approaches and legislation on confidentiality may be relevant. Generally in the UK the process can be assumed to be confidential, unless agreed otherwise. The contract between the parties will usually specify how the arbitrator is to be appointed, usually by referral to a body such as the Chartered Institute of Arbitrators. Arbitral awards are binding and enforceable broadly in the same way as a court judgement, both domestically and abroad. Enforcement provides the parties with some certainty of outcome, whichever way the arbitral award falls.
International arbitration is underpinned by international bodies such as UNCITRAL, who have created an international model law to encourage states to adopt standard approaches for the benefit of parties engaged in international trade. Similar to litigation, an appeal is generally only possible in very specific circumstances: where the right to appeal has not been waived, where there are questions of law (but not fact), and with the agreement of all parties or with leave of the court. The conditions to allow an appeal are very limited, including that the decision is plainly wrong or, where the question is one of general public importance, or at least open to serious doubt. The application to the court must generally be lodged within 28 days of the date of the arbitral award or the parties being notified of the results. An appeal to the court will extend the timescale for absolute resolution of the dispute.
Arbitration is a process more appropriate for larger disputes where the parties are adverse to compromise but wish to submit to a faster and less costly process than litigation.
Early Neutral Evaluation
We offer an ENE service across our broad range of technical disciplines. ENE is used where the parties to a dispute invite a neutral third party to hear the facts and merits of the case. The scope may be the entire matter in dispute, or be constrained to a narrower issue requiring attention. An expert, a lawyer or a judge can hear the ENE. Recent amendments to the Civil Procedure Rules (CPR) have elevated the status of ENE: "...the court may...take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.
Such a mention in support of the overriding objective will be welcome succour to all those involved, not least the judiciary who may take a view that hasty litigation is wasteful of not only the legal services budgets of the parties, but perhaps more importantly, the court's valuable time. However, ENE may not be suitable for all disputes. It is particularly effective for large and complicated business disputes where certain technical or legal points with defined boundaries have created a barrier to further progress. Considering that in such disputes the parties will have their own strongly held beliefs about the merits of their position, most probably fostered by knowledgeable team members or advisors, ENE still may not achieve resolution.
To have a neutral advisor declare a non-binding outcome, which is not opined on the basis of all the facts of the matter that would, by comparison, be discovered in litigation proceedings, is unlikely to be agreeable to all. ENE may be somewhat limited in this regard. However, what it can do is bring about clarity of scope, the pertinent facts of the matter, and the key factors behind the position held by each party. Again, when compared to litigation, a very positive outcome of ENE is a greater sense of realism about the matter before costs and time become excessive. This view plays up to the psychological aspects of dispute: senior executives, particularly in large and tall organisations, may be blinkered to the actual merits of the case, or may even not be aware of the merits until this stage. The entry into ENE is dependent on the terms of the agreement between the parties and the procedural approach preferred by the evaluator. The terms would usually specify the body to appoint the evaluator, and may go into detail on items such as the procedural rules to be applied.
ENE, as a confidential and without prejudice process, allows parties to explore matters at an early stage behind closed doors. This may be a crucial point for all parties to an agreement particularly where the issue at hand is of a complex technical nature. The costs of carrying out the ENE process are usually shared equally between the parties. The parties can agree for the ENE to rely solely on documents, or can include oral submissions. Witnesses or experts, in addition to the expert managing the process, can be introduced by agreement of the parties.
The evaluator's opinion can be given orally or in writing, after which the parties can agree further steps to explore settlement. The structure of the opinion can be similar to the report of an expert, although is extended by the evaluator's opinion on the likely outcome should the case proceed to a binding stage via arbitration or litigation. Interim measures are not possible using ENE unless agreed by the parties as part of a settlement agreement.
With the imminent CPR highlight on ENE, and as a non-binding, confidential, lower cost and flexible approach that will bring about an outcome in far less time that arbitration or litigation, ENE provides a very helpful early stage of clarity for the parties. This clarity may bring about an improvement in relationships and increase the probability of early settlement.
We offer an expert determination service across our range of discplines. ED is often seen in IT, engineering, accountancy and construction disputes (especially in regards to cost and time claims and variations). By its very nature, it is most appropriate for the resolution of technically complex disputes. A key benefit for the parties is that it the matter is heard by an expert, and in private. This supports a simple, efficient and confidential process. Similarly to other ADR techniques, costs are likely to be lower and resolution time shorter than litigation. It should be noted however that there are no interim measures possible within ED.
ED does bring about some risk for the parties. Although not judicial in nature, as a binding ADR technique, to be on the "losing" side will be perceived as unsatisfactory. There is also a strong dependency on the expert being of adequate competency, not only regarding the subject matter at hand, but also in their ability to manage the process. Despite the expert not being immune from prosecution, there will be little recourse to appeal against the determination of the expert (save for bias, fraud or deceit, or where the expert has acted outside of instruction). So, care should be exercised on drafting the appropriate terms at the contracting stage. To recognise early on in a relationship that the expert's decision "shall be final and binding on the parties" would, later on, ideally bring a sense of realism that may have been absent up to the moment of the expert being appointed.
In addition to setting out the binding nature of the outcome, there is also scope for agreeing other aspects of the approach, including: the timetable, the use of oral hearings and experts, liability for costs, confidentiality and disclosure, circumstances in which a decision can be challenged, and so on. Where the contract does not elaborate to this level of detail, model terms of engagement are available from bodies such as the Academy of Experts. For complex matters (legal and technical), and where privacy and flexibility are prerequisites, whilst not enforceable by the courts, ED provides a helpful and party-managed method of dispute resolution.
Our experts are trained in mediation. Mediation is a private method of ADR in which a trained mediator facilitates the process. The choice of mediator is usually determined by the mediation clause in a contract, or by agreement between the parties. Statistics show increasing demand for mediation services, and thanks to high profile mention, mediation is being considered widely as an increasingly valuable process in dispute resolution. Similarly to most other ADR techniques, mediation brings faster and less costly resolution than in litigation. It is significantly more flexible in that the process can change direction and form based on progress achieved by the parties under guidance of the mediator. For example, one party may reveal, for the first time, a position or desire that the other party finds helpful, and the journey to resolution becomes smoother. Because of this, mediation provides a more graceful approach, and long-term damage to the relationship between the parties is less likely. It therefore provides significant benefit in mission critical agreements, such as long-term multi-service technical facilities management outsourcing. In agreements such as these, the concept of winner and loser is unpalatable (for all parties) and a more preferable outcome is some aspect of win for all parties rather than a winner and very disappointed loser.
The mediator has no ability to discover; documents and evidence available to the mediator is that which is presented by either party, and nothing else. Only after agreement from the giving party can it be disclosed to the other party. An agreement reached during mediation is normally memorialised in the form of a settlement agreement between the parties, i.e. a contract. So although not strictly enforceable by the courts per se, it carries wait as a contract in its own right.
Mediation can also be used as an early stage process in "med-arb" – a hybrid process where mediation is carried out first, after which arbitration (see below) can be used to resolve outstanding items of dispute. Med-arb does have some criticism whereby the mediator may not be able to remain impartial having been exposed to much confidential material that is then not presented in evidence during arbitration. In this case, the arbitration stage can be heard by a new, previously uninvolved, arbitrator. As the process is highly flexible it can be used for any type of dispute with multiple parties, ranging from family dispute up to international commercial disputes between high profile companies. An experienced mediator may be able to facilitate the parties to overcome initial refusal to mediate. The mediator may be able to bring about a sense of realism that has up to that point been blinkered, at least privately with one party, and perhaps in joint sessions with both parties.