Chancery & Commercial: Alternative Dispute Resolution

ADR in all its forms is particularly relevant now. The backlog of cases in the Court system and the increased cost of litigation means that there has never been a greater need for fast, efficient and cost-effective alternative means to resolve disputes. PLP ADR does this by making a positive difference for its clients – working in partnership, listening and hearing what clients are looking for so that they can deliver tailored, expert advice and advocacy.

The PLP ADR Team provides services relating to mediations, expert determinations and early neutral evaluations whether by way of conducting the process or appearing as advocates.

Each of the members is an individual expert in their own field and they are more than happy to take the time for a quick chat with clients (off the clock) to help clarify the initial direction of travel and resolution options available.

Members of the team are happy to have an informal chat to clarify your thoughts and bounce some ideas around, then the team are available either directly or through the excellent Clerking Team.

We also offer a competitive drafting service for solicitors. This ensures the final documentation as part of the compromise or determination is comprehensive and structured to avoid future problems.

If you would like to discuss your case and the most appropriate form of ADR for your client then contact one of the ADR Team or our experienced Clerks for an informal discussion on your options for effective resolution.

“The clerks are incredibly helpful and easy to deal with.” “Stephen Render, senior chancery and commercial clerk, is a fantastic clerk. He is very good at communicating and getting jobs done. If the barrister you need is not available, he’s good at finding a suitable replacement.” Chambers UK.

Mediation

Mediation is a tried and tested solution for most types of civil and commercial disputes.

One of the principal advantages of mediation is the speed within which a mediation can be organised. In suitable cases, this can be less than a week which can be vital for your client. We can host the mediation at our Chambers in Leeds or Newcastle.

Choosing the mediator

The parties may select and agree a specific mediator from our team or, if requested, the administrator can select a mediator for you.

Perhaps the method of ADR familiar to most, mediation is a confidential, ‘without prejudice’ process of dispute resolution. Parties agree to jointly appoint an independent, trained mediator.

How does it work?

Before the day of the mediation, the mediator will be provided with the key documents and, ideally, each party will provide a short note for the mediator setting out the position that the party wishes to adopt at the mediation. This might explain the strengths of the case or provide insight in to why the party is seeking a particular outcome. The mediator will be provided with a bundle of relevant documents about a week before the date for the mediation.

The mediation will take place on a fixed day either at an agreed venue or by remote means such as Zoom, MS Teams or even by telephone.

The parties and, if they have one, their legal advisor(s) attend at the mediation venue on a mutually agreed date. The event of, and the matters discussed at the mediation, are strictly confidential and should not be made known to the Judge. The mediator remains neutral throughout the process but will explore with the parties their legal position and any other relevant factors, such as the commercial or practical benefit of reaching a settlement agreement.

The mediator does not and cannot impose a solution on the parties. If parties reach an agreement on how to resolve their dispute, a written agreement will be prepared on the day of the mediation (or swiftly following the mediation).

Agreements reached in mediation should be binding and, if possible, resolve all issues between the parties. Settlement agreements may need to be lodged with the Court.

The cost of the mediator will depend on the seniority of the mediator, the value of the dispute and the amount of preparation necessary. The administrator will agree a fee with the parties before fixing the mediation. Typically, the parties share the mediator’s fee equally and this may need to be paid in advance.

If you would like to discuss your case and mediation for your client then contact one of the ADR Team or our experienced Clerks, Stephen Render, Hannah Townsend, and Jodie Connor for an informal discussion.

Financial Dispute Resolution

A Financial Dispute Resolution is a Court hearing in relation to a financial dispute where the parties are provided with an opinion on the merits of the case by the Judge.

This opinion is not binding and is provided in order to assist the parties in reaching a negotiated settlement. An FDR is usually directed once all disclosure has been provided. Neither the opinion itself nor correspondence between the parties for the purposes of settlement can be referred to at any later Court hearing.

Although FDRs were developed in family proceedings, they have been extended to TOLATA and similar claims.

There are a number of problems with FDRs:

• It may take time to arrange an FDR. The resources of the Court have been stretched to their limit in recent times.
• Considerable legal expense may have been incurred before the hearing.
• The Judge may not have been given adequate time to fully grasp the facts.

Early Neutral Evaluation

ENEs have been developed in order to allow a process where parties can instruct an impartial evaluator to provide an objective and realistic opinion on the merits of the claim. The parties then use this opinion to form the basis of settlement.

Each process is particularly effective where the parties have reached an impasse on the legal or technical aspects of the dispute or where there is a wide disparity between the positions of the parties. The benefits of each process include:

• It is voluntary and confidential.
• It can be used for any dispute which would be tried in the Business and Property Courts.
• It can be undertaken at any stage of the claim.
• The parties choose the time and place when it will take place.
• The parties choose the evaluator. An evaluator with experience in a particular area of practice will be better able to understand the issues and different means of resolving them.
• The parties choose how the skills of the evaluator are to be used. There is no set procedure. The parties may hold a meeting at which the evaluator will be available to assist or the evaluator may be asked solely to provide a written opinion. The evaluator may be limited to the information provided or may be given freedom to request additional information. The parties may be permitted to ask questions of the evaluator or ask for clarification.
• The evaluator can devote proper time to the task.

Members of the PLP ADR Team act as evaluators as part of their usual practices. Many are leading experts in their fields. Chambers can provide facilities for the holding of meetings including provision of rooms and refreshments or (if necessary) and the holding of remote meetings.

If you would like to discuss your case and whether it is appropriate for an ENE then contact one of the ADR Team or our experienced Clerks, Stephen Render, Hannah Townsend, and Jodie Connor for an informal discussion.

Expert determination

Expert determinations are probably the quickest, most sensible and most cost effective process for resolving disputes. Whereas other forms of ADR require a commitment by the parties to negotiate, expert determinations only require an agreement to allow a third party to resolve the dispute.

All will be familiar with the use of expert determinations in disputes about the construction of lease covenants and contractual terms and the interpretation of wills. However, the process lends itself to any dispute which does not involve contentious factual issues where the parties or their advisers have honed down the issues already.

Benefits

The benefits against available alternatives, that is to say arbitration and court proceedings are:

• The processes of arbitration and the court designed to hone down issues are redundant.
• The parties can obtain an expert determination as quickly as they require.
• The parties choose their expert. In any area of the law, there will be far more available experts than arbitrators. The parties cannot choose the Judge who will hear their case.
• The clause appointing the expert will usually ensure that the decision is binding and not subject to appeal save in very limited cases.
• No adverse cost orders. The parties normally agree in advance how the costs are to be shared.
• Making full use of expertise. The expert has the power to ask questions of all parties and to make independent investigations.
• No oral evidence.

Members of the Dispute Resolution Team provide expert determinations as part of their usual practices. Many are leading experts in their field. Areas of law covered include:

• Banking
• Commercial contracts
• Company law
• Conveyancing disputes
• Landlord and Tenant (residential and commercial)
• Partnerships and LLPs
• Probate disputes
• Technology disputes
• TOLATA claims
• Will constructions

Drafting

A crucial part of concluding the compromise or determination of a dispute can be the drafting of appropriate documentation whether within or outside the Court process.

It is important that such documentation is detailed and accurate in order to carry out the parties’ intentions and in as tax efficient a manner as possible. Choosing the correct structure may be central to success and the avoidance of future problems.

Whilst it might be thought that the drafting of specialist documentation is part of the practice of all barristers, this is far from the case. Members of the Dispute Resolution Team are experienced at drafting bespoke documentation for these purposes including the following:

• Conveyancing documentation including overage provisions
• Deeds of Compromise
• Deeds of Indemnity
• Deeds of Variation
• Loan Agreements
• Purchase of Own Shares documentation
• Shareholders Agreements
• Tomlin Orders
• Trust Deeds/Declarations of Trust

Members of the PLP ADR Team are available to provide drafting services whether within the scope of ADR or otherwise. If the parties have already reached agreement, Counsel can be retained to prepare the necessary documentation only.

If you would like to discuss drafting support then contact one of the ADR Team or our experienced Clerks, Stephen Render, Hannah Townsend, and Jodie Connor, for an informal discussion.