Mediation, Expert Determination, and ADR by anamaulida


									Mediation is very much the flavour of the day. It is promoted by the
courts and a litigant who does not agree and co-operate with mediation is
likely to be penalised in costs. It has advantages but also mediation has
disadvantages.The advantages of mediation are that it can be quicker and
cheaper than court proceedings, that there is confidentiality in not
having a dispute aired in open court, and that consensual agreement is
preferable to a settlement forced on the parties.Mediation does however
also have disadvantages. A party with a weak case is likely to argue for
mediation in the hope of receiving some offer of settlement. For the
party with the strong case not prepared to comprise it, mediation can
only mean delay and further cost.Mediation will always equate with
compromise and there can be little reason for a litigant with a
compelling case to compromise simply because mediation has been required.
Mediation can only succeed where there is room for compromise and is only
worthwhile in money claims where a binding order for payment is not
required.Expert Determination is another form of Alternative Dispute
Resolution which should be considered in appropriate cases. Where there
are technical issues it is particularly appropriate. It should be an
inexpensive and relatively straightforward procedure.The parties to the
dispute simply agree to the expert who will be called upon to decide
matters and the terms of his appointment. Particular experience of the
matter in dispute will usually be a requirement of the expert. The
parties will agree beforehand that the decision will be binding upon them
and all procedural matters such as costs and confidentiality of the
determination.The experts decision cannot be appealed unless this was
agreed beforehand and can only be challenged on limited grounds. These
will be where there has been deceit or fraud, proven bias by the expert,
or evidence that he has acted unfairly or outside of his jurisdiction.
There is case law that even if an expert is wrong on a material fact; the
determination is still binding.Alternative Dispute Resolution, be it by
arbitration, mediation, or expert determination can never be a substitute
for court proceedings. Many types of cases are just not suitable for ADR.
Claims against reluctant payers, applications for injunctions or freezing
orders are examples of these. The threat of court proceedings with its
costs and the available sanctions will often concentrate a parties mind
on settling a claim. A willingness to compromise and accept less than is
due is often assumed with an invitation to mediate.There is a place for
mediation in resolving disputes and also a place for expert determination
and the various other forms of ADR. At the end of the day however
everybody has the right to court determination of an issue and it is
wrong that any attempt to distract from this is forced upon a
litigant.Andrew John

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