I’m really pleased to welcome Oliver Richbell to the blog. Oliver is a Partner in The Dispute Resolution Partnership who uses his litigation experience and the mediation process to empower clients to work towards settlement and where possible avoid disputes escalating into legal battles.
‘If only’ is a phrase that we at The Dispute Resolution Partnership come across all too often.
‘If only’ can of course mean a wide variety of things but in the context of commercial disputes it tends to relate to ‘if only’ the business had:
- Negotiated earlier
- Kept control
- Never gone to Court
By avoiding disputes through early intelligent negotiation, pre-action discussions and pragmatic not positional strategies, businesses are able to minimise their legal spend, reduce lost management time, preserve commercial relationships and crucially maintain the control of an outcome – after all it’s the parties and not their legal teams that have to rationalise the ‘if only’s’.
The ‘if only’s’ of being involved in contentious Court facing disputes are too numerous too accurately list but are basically; its too expensive, too risky and an ineffective use of valuable management time.
In commercial litigation there is always a winner and a loser, a payor and a payee and that conclusion is an imposed one where the client has been removed from the decision making process by solicitors, barristers and a Judge. Recourse to the Courts is the traditional status quo mechanism of resolving a disagreement or dispute but recent changes to the rules governing Court actions has opened the door for parties to avoid the imposition of a judicial decision.
In truth this door has been open for some seventeen years after the Woolf Reforms of 1999 but it was not until the more recent Jackson Reforms of 2013 when the door was ‘propped open’.
Parties to commercial litigation are now directed by the Courts that they must ‘treat litigation as a last resort’ and not as a first strike. The use of all forms of Alternative Dispute Resolution (ADR) but especially Mediation continues to grow year on year, thereby relieving the Court system of unnecessary full trials. However the Courts have considered that avoiding Trial is not the same as avoiding litigation altogether.
In order to encourage parties to ‘treat litigation as a last resort’ Courts have declared that they will, on a case-by-case basis, penalise parties to litigious disputes for not trying to resolve them before proceedings are issued. This means not on a legal merit but on a recovery of costs basis. It is now a matter of public record that a party to a legal dispute can ‘win’ their claim at Court but as a result of failing to try and resolve the dispute before even proceedings were commenced, they can recover nothing against their legal bill or in the case of a ‘loss’ at Court they can award an indemnity cost award for failing to ‘treat litigation as a last resort’. It is also entirely plausible that any party to litigation, either the winner or the loser, can be ordered to pay part of the other side’s legal costs. So even if you win you can still lose and if you lose you can still win.
The Dispute Resolution Partnership is a family run organisation comprising a worldwide renowned Mediator and a experience commercial litigation solicitor. Together, through their shared experiences, The DRP was formed to help businesses (and individuals) avoid the risk and uncertainty of litigation by helping them avoid disputes before they become litigious actions.