David Hoffman considers how to make best use of ADR in the current situation.
(This article was written in April 2020 but many principles still apply)
A great deal of litigation has suddenly hit serious uncertainty. Many hearings, and pretty much all trials, are being adjourned. This is causing a lot of litigants to want to settle their cases rather than endure ongoing uncertainty, especially when surrounding circumstances are also uncertain. Many parties to cases who launched them at a time when they could afford to do so, now wish to extricate themselves from ongoing costs.
All of this means that many cases, many litigants, are looking to settle. All the usual forms of ADR continue to apply, and we can help you be creative in how these are given effect.
Here at 18 St John Street Chambers, we are keen to support you in making this happen, with the options we can offer to support ADR processes, especially by remote working. As well as performing the traditional barrister role of advising clients as to the merits of settlement and representing them in ADR processes, we also have a dedicated team of those barristers with qualifications and experience in different forms of ADR, especially mediation and arbitration.
Mediation
• As you will know, mediation is all about trying to get cases settled, facilitating the negotiations of the parties. Where parties are stressed, as is more likely to be the case now, having a mediator makes the settlement process more productive and less likely to involve the parties aggravating each other, because they don’t have to communicate directly.
• Cases involving family members or neighbours or business partners, for instance, may well benefit from being settled so that people can re-prioritise their relationships.
• We have a number of accredited mediators who can act over a variety of civil and family cases.
• Mediations can be conducted remotely, by phone or by video meeting. We can help you think through what would be the best process and then work out how to implement it.
• Most standard video meeting services have the ability to create rooms or parallel chats so that party and lawyer meetings can happen at the same time.
• Mediations by phone can be set up with different calls, including by Skype or WhatsApp which allow group calls.
• Once parties have agreed to mediate, that should ease off any immediate stress and you can take time to work out the best process.
Arbitration
• Arbitrations are a way to obtain a binding legal determination of the dispute.
• The process can be tailored to the scope of the dispute.
• It could be entirely conducted on paper, with written evidence and submissions and no hearing of any sort, which will keep the costs down.
• It could involve telephone or video hearings which avoid any need for personal contact between parties / arbitrator.
• The parties have more control over the process and there are no concerns about having to make remote hearings public since all arbitral processes are private.
• Arbitration means that the dispute can continue towards resolution without having to navigate the overload on the courts.
• You can also agree proportionate directions to keep costs down.
• We have qualified arbitrators for civil and commercial cases, and other experienced barristers who could take on an arbitration.
Expert determination
• Expert determinations may be particularly suitable for getting an efficient resolution.
• Effectively this is a joint instruction between the parties for an experienced barrister to provide a joint view which the parties can either treat as binding or as advisory.
• If there are genuine legal issues which are inhibiting settlement, this may be a way of resolving those parts of a case which are intransigent and allowing the rest to be settled.
How can we support you?
The main thing we want to reassure you about is that at 18 St John Street Chambers we are open for business. All members of our mediation and ADR team are available as normal to provide the same high quality and responsive service, whether by telephone, video or email.
• We can provide qualified and accredited ADR specialists, including accredited mediators and arbitrators and experienced counsel to provide expert determinations.
• We can provide virtual meeting facilities for conferences, mediations and arbitral hearings.
• We support Microsoft Teams, Skype for Business and Zoom as well as other platforms.
• We can help with managing documents to get them ready for hearings.
Plus of course, all of our teams, including business and property, family and PI / civil, remain available to help represent parties in ADR processes and to advise parties on the way forward, including terms of settlement.
This may well be an opportunity to provide a quality service to clients whose needs and priorities may have changed very dramatically. We are here to support.
David Hoffman
April 2020
If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.