In this week’s blog, Inderjit Gill a partner in our dispute resolution team in Newcastle talks about how times are changing in the way we tackle disputes.
I started my career at Jacksons in 2008 as an assistant solicitor and I am looking forward to celebrating my tenth anniversary in the New Year.
There have been major changes in the world of dispute resolution over the last ten years and further notable changes are in the pipeline.
Commercial Litigation or Dispute Resolution?
I have always considered myself to be a litigator, although I have learned that an aggressive, intimidating and bullying attitude will only get you so far. I pride myself on looking at the wider picture and what it is that my clients are trying to achieve. The role of a litigator has evolved into that of a problem solver; trying to achieve the best outcomes possible for clients, as quickly as possible. I now like to think of myself as part of a modern day dispute resolution team, as opposed to a commercial litigation department.
Conundrums
A litigator’s life used to revolve around court proceedings. Since the Woolf Reforms https://www.justice.gov.uk/courts/procedure-rules/civil/rules litigators have had to adapt to using the court as a last resort. Pre-action protocols now ensure that adequate preliminary investigations are undertaken and there is a dialogue between parties, before launching into proceedings. Parties achieve a better understanding and handle on the issues. In my experience, a higher percentage of cases now settle without the issue of proceedings. We now have a front loading of costs, albeit clients are happier as they see an overall cost saving as cases are settling earlier.
ADR (Alternative Dispute Resolution)
Quite often when I mention ADR, there is a blank look on many faces. Many clients still have tunnel vision and demand their day in court. Slowly, but surely, clients are now starting to appreciate having their day in court comes at a price and does not necessarily provide the best outcome.
There is now a political will to ensure the array of tools available in a litigator’s armour are fully utilised:
- A simple round table meeting between parties to air and thrash out their differences.
- The appointment of an Arbitrator to hear submissions and power to make an award.
- For more technical arguments, the appointment of an expert in the appropriate field, bringing their own knowledge and experience to the table, to determine a sensible settlement.
- Finally, mediation http://www.civilmediation.org whereby the parties appoint an independent third party, normally someone experienced in the area, to try and broker a deal acceptable to the parties.
Is Mediation the way forward?
There is now a heavy emphasis on mediation across the board, whether it is matrimonial proceedings, small claims or commercial disputes. The mediation process is flexible, voluntary and confidential. It may not be suitable for all claims, but the vast majority of claims are suitable for mediation. A mediator does not decide who is right and who is wrong, but to try and assist parties reach an agreement. As the process is consensual, no party can be forced into a settlement, although a mediator will push and prod, to question the parties stance adopted.
Mediation provides parties with an arena in which they can discuss issues in private and in confidence.
I always encourage clients to consider mediation at every stage. Once there is an understanding of each party’s approach, mediation should be considered. Mediation can be held before proceedings are issued and the parties are entrenched in their approach. After proceedings are issued, timetabling of directions may only leave a limited timeframe for mediation.
Mediations can overcome deadlocks, ensure business relationships are maintained and provide a forum for flexible solutions.
What does the future hold?
We are in the midst of great changes to the litigation scene. Mediation is being given a big push and parties are receiving severe criticism if they unreasonably refuse to mediate.
It is likely that an on-line court for small claims under £10,000.00 will be rolled out nationally, providing for papers submissions and virtual judgments.
We are likely to see fixed costs extended to the vast majority of litigated claims.
I hope we will see a court system that is far more efficient and one that ensures claims are dealt with much quicker. Here’s hoping anyway.
Inderjit Gill, Partner, Dispute Resolution igill@jacksons-law.com 0191 2069625.
