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How Many Routes to Resolution?

Posted on 6th September 2018 by Chris Makin

Let me count the ways…  (Elizabeth Barratt Browning, Sonnet 43)

Yes, there are many ways of resolving disputes, and it falls to the skilled legal practitioner to choose the right one.  It is no longer the case that going to court is the only way.

In criminal cases, court is the almost inevitable route.  But let’s not be so hasty.  If, for example, fraud is detected, going to the police is not necessarily the right choice to make.  If a business has suffered financial fraud – say, an accountant who has stolen cash, falsified records, run a scam with suppliers – the size of the fraud can often have brought the enterprise to the brink of insolvency.  The urgent need then is to recover the money – fast.  Reporting matters to the police can result in them seizing as evidence the very records which are needed to pursue the offender.  You need a skilled forensic accountant who can quantify the loss and help confront the offender for restitution, without destroying the evidence needed if a formal claim must be made, or if a criminal prosecution becomes necessary.

In big ticket family cases, the FDR is commonplace.   A senior family judge hears the evidence in submissions, makes a finding, and encourages the parties to go away and agree matters.  If that fails, the whole case is heard before a different judge for a binding decision.

Members of Resolution are keen on collaborative law, where both spouses and their solicitors do their best to agree matters in meetings.  Since the lawyers must stand down if discussions fail, and since the parties must instruct different lawyers at additional cost, everyone is committed to reaching a settlement.

Mediation is good in family matters.  Specially trained family mediators hear both sides in a series of meetings, and help find common ground.  In most cases the parties are supposed to attend a MIAM (Mediation Information and Assessment Meeting) before they can have a hearing, though adoption of this is patchy in some areas.

Whilst I am a civil and commercial mediator, not a family mediator, I have successfully mediated the financial aspects of divorce.  For example, two married GPs had a “job share” sole general practice, but one of them was also a part-time occupational health consultant.  There were no children, and there had been no violence.  Once it was agreed that one would take the GP practice and the other build up their consultancy, and we reached agreement on house, savings and pensions, there was very little left to agree later.

In civil litigation, the choice is wide.  There is of course always the option of talking to the other side, and many personal injury practitioners are fond of the joint settlement meeting.

Arbitration is available, and for some cases it is ideal; one can have a fair hearing, before an arbitrator of the right profession to understand the issues, and with a legally binding decision; and for big cases it is far quicker than waiting for a high court hearing.  But arbitration can be so formalised that it is just as lengthy as court, and you have to pay the arbitrator rather more than the court fee.

I had an interesting experience when a small firm of solicitors had a dispute about how much the senior partner should receive on his retirement.  It had gone to arbitration, where a very senior arbitrator had charged more than the amount in dispute!  And, worse, he had made an award only on principles, and the quantum still had to be decided.  So I was appointed to do an expert determination and put some numbers onto the principles.  This I did, at a far more modest fee; but it still proved an expensive exercise for these poor solicitors.

Expert determination should not be overlooked.  I was one of the first five to be accredited an expert determiner at The Academy of Experts, where I now examine candidates.  You can regard ED as a cheaper and faster form of arbitration; the expert is chosen for his appropriate experience, and the process is done largely on paper, though formal hearings can be held if necessary.  I am on the President’s panel of EDs at the ICAEW, and am brought in often to resolve Share Sale/Purchase disputes, but I have done other kinds, such as the partnership case above.

Then we have Early Neutral Evaluation, where, similar to ED, I receive submissions from the parties and their advisers, and then issue a non-binding determination.  If they can’t agree matters after that, I can conduct a mediation to agree on what is left.

There are many ways to skin a cat!

Which brings me to mediation.  I am getting much busier as a mediator, though still very busy in my “day job” as forensic accountant and expert witness.  So there are still many people who follow the conventional route, but with costs budgets, costs penalties, and the courts cluttered up with litigants in person, that is changing.  And the litigator has a constant duty to consider ADR.

Let me close by telling you about a wonderful experience I had recently.  In a big dispute over professional negligence, the parties wanted two mediators: a lawyer and an accountant.  The lawyer they chose was Sir Alan Ward, recently retired as a Court of Appeal judge, now a mediator and chairman of the Civil Mediation Council.  But, although he had always been very supportive of mediation in his judgments, he had not yet done a mediation.

The accountant mediator they chose was yours truly.  But I have done over a hundred mediations, whereas this was the first time Sir Alan had seen the inside of a mediation.  And, do you know, he was wonderful!  So wise, so well-informed of the procedure and the case, and with such a soothing bedside manner.  And never once did he revert to making judgments.  The whole experience was a delight, and I in turn learned so much from this “beginner”!

So to conclude, the choice of methods to settle disputes is wide, and I am always happy to talk about them to anyone who will listen!


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