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The panel chaired by Wendy Miles KC, provided insight from client, academic, expert and mediator perspectives. The panel discussed the different mechanisms available when dealing with cross-border disputes with a particular emphasis on mediation.

The starting point for the panel discussion was the client perspective. In many cases, litigation will involve a multitude of contested issues which by the time of the trial/arbitration has been isolated down to one or two. Any dispute will involve the client diverting time and costs away from their business—their number one focus. For the majority of clients, the key driver in any dispute will therefore be the economics of pursuing it and how much it can be settled for as opposed to the merits of the case.  They need to be able to trust their legal team as well as the judiciary/arbitrators to take a proactive stance to seek to resolve the dispute. There are many tools to achieve this with the examples considered being quantum evidence, mediation and arbitration.

Quantum and the use of expert evidence

When considering cases in which damages are being claimed, the seemingly ingrained approach is for the claimant to go in high and the defendant to go in considerably lower than the claim.  In treaty arbitrations the difference can often be greater with the defendant taking the stance that the claimant has incurred zero damages. This approach is genuinely counterproductive as it sets vast expectations for the claimant from which it is very difficult to move away from and can compromise any settlement opportunities. The issue of quantum is normally left until the expert stage but the approach advocated by the expert on the panel was to instruct an expert early so as to gain a realistic understanding of the quantum of damages and thereby manage the expectation of the client. By leaving expert evidence until the later stages and by adducing the evidence towards the end of trial it can, in some cases, mean that there is little interrogation of the quantum itself. While there is often a fear that expert evidence will be hugely expensive, it can focus the parties towards settlement or at least a more conciliatory approach to the dispute which is turn will save the client both time and monetary costs with the possibility of going some way to maintaining the relationship between the parties.

Mediation

With the current emphasis in England and Wales on ADR, especially whether mediation should be compulsory, this was an interesting panel discussion on the potential uses of mediation as a tool kit in cross-border disputes although the insights could perhaps apply equally in a domestic case. The question was whether mediation can move to being an integral part of the litigation process.  With a neutral (the mediator) at the core of the process, it can provide a safe environment for parties to gain an understanding not only as to the other party’s case but also the strengths and weaknesses of their own so allowing each party to undertake its own risk assessment.

The extent to which mediation may be used outside the litigation arena was also highlighted.  An interesting use is that of ‘deal mediation’ where prior to entering into a contract the parties will come together with a mediator to identify potential areas in which issues may arise resulting in a memo of understanding.  This can then be referred to as and when issues arise with the mediator able to step back in to bring the parties and their contractual relationship back on track.  The many benefits of such an approach are clear and given it is already in use, will we see an increase in this use of mediation? As highlighted by the panel, it is for the legal teams to look at creative and flexible approaches to ensure that contractual party relationships can move forward rather than being mired in litigation which detracts from the day-to-day business of the client and drains it both in terms of time and financial means.  For a client, the use of mediation may well not be successful, but it will invariably enable a client to look more objectively at their case and can provide a route to opening a dialogue between the parties.

Arbitration

This is a powerful tool and has then benefit of privacy unlike the public arena of the courts.  However, that is counterbalanced by the fact that the public nature of the courts can drive a party to serious consideration of settlement to limit any damage to reputation that may arise out of public hearings.  Currently, reform of the Arbitration Act 1996 is underway. This has been a highly consultative process which has thrown up a wide range of views. The current act, rather than laying down a codification of rules, sought to provide a guide to the customs and practice already in place. The extent to which this should change has polarised opinion especially in areas such as appeals under AA 1996, s 67 and summary disposal. Ultimately, for the arbitration process to work smoothly, it is reliant on the ‘scaffolding’ of the court.

Conclusion

While these tools have been around for some time, there is now an emphasis, especially in relation to mediation, for these to become much more integrated into the dispute resolution process. However, with the increasing number of claims involving unknown defendants, such as those involving block chain, the legal teams will need to continually adapt to ensure that the requirements of the client, as highlighted in this panel discussion, can be met.