In days gone past once a commercial or legal dispute which could not be resolved between the parties in the normal course of business arose, the only recourse was the issue of legal proceedings as the first step on a potentially long and hazardous journey to Court.
This journey seemed to last an eternity, with the resulting impact on ongoing business and increasing costs.
Eventually the matter would be listed for hearing, many hours of preparation would be required and aspects of business would come to a virtual standstill to allow the witnesses required to prove or defend the dispute to attend Court.
Either the hearing would last for days with numerous witnesses on each side, the eventual outcome being unpredictable or even unexpected, or the parties would at last get their heads together and a resolution thrashed out.
Such resolutions, arrived at under the pressure of the hearing about to commence with all the inherent risks of trial hanging over them, could well leave neither party feeling particularly happy at the outcome, perhaps wondering if it had all been worthwhile in the first place!
Thankfully those days have long gone and full blown litigation is now increasingly being seen as what it always should be, a last resort. Whilst they still perhaps have quite a way to go, Dispute Resolution lawyers and the Courts are now much more attuned to the needs of business and the realities of day to day commerce and the trend is towards the legal process adapting to fit the needs of business rather than the other way around
A number of years ago a “Commercial List” was established in the High Court in Northern Ireland with a designated “Commercial Judge” to oversee and administer “any cause relating to business or commercial transactions…” From the outset a much greater degree of Judicial intervention and Case Management was begun with a view to speeding up the process and facilitating resolution and, with time, this has proved of great benefit and indeed the approach has spread into other areas of litigation
Such procedural changes broadly coincided with an increasing interest in Alternative forms of Dispute Resolution, and in particular Mediation, and such developments were encouraged by the Court. This ultimately led to the issue of a Pre-Action Protocol for Commercial Actions with the stated objective of enabling “parties to avoid litigation by agreeing a settlement of the claim before commencement of proceedings..”
This Protocol requires parties to meet before the issue of any proceedings with one of the stated purposes being” to consider whether some form of alternative dispute resolution would be more suitable than litigation…”
Thus whilst parties to commercial disputes are not being compelled to enter into alternative forms of Dispute Resolution they are clearly being strongly encouraged to do so
There are clear advantages to these alternative forms of Dispute Resolution and, in particular, Mediation. Mediation is a consensual process: It is held at a time and a place that suits the parties, the Mediator is agreed between the parties, the conduct of the process can be adapted and agreed to facilitate the parties and an outcome can only be reached by agreement, the Mediator cannot and will not impose an outcome. Mediation also allows non legal and more commercial factors to be taken into account and outcomes can be agreed that are much different and more commercially centered than a Court could order. This non adversarial approach also lends itself more readily to a continuing of commercial relationships between the parties than would the “battle” of full blown litigation.
At the end of the day if such alternative forms do not lead to an agreed resolution there is always the option to proceed to litigation but at least one would have the benefit of knowing they had tried rather than wondering if there was another way.
Even if such alternative forms of resolution do not prove successful and full blown litigation is the only option open, the Commercial Court has adapted more efficient procedures to deal with Commercial Disputes and there is increasing emphasis on the disclosure and potential agreement of expert reports, narrowing the issues in dispute by seeking to agree as much as possible and greater case and cost management. Relatively new concepts such as early neutral evaluation and concurrent evidence or “hot-tubbing” are also much in favour
All in all the “one size fits all” nature of Dispute Resolution of the past is long gone with the emphasis now on a more adaptable, efficient and commercially focused process. Whilst these changes create many challenges for Dispute Resolution lawyers and the Courts, it is the world of business, and commerce in general, which is likely to be the main beneficiary