Dispute Resolution

This is how The DARP can help you resolve your dispute:

Choosing the appropriate process

If problems have grown to the point that a formal resolution process is required, The DARP can advise on the various options and their relative advantages and disadvantages.

Our preference is always to avoid Court, not only because it is a lengthy, expensive and time-consuming route with an outcome dependant upon the interpretation of law, but also because the parties in dispute lose control of the process, cost and outcome.

Nowadays parties to disputes are expected (and in some cases ordered by the Court) to utilise ADR (usually mediation) before going to Trial. It is therefore a matter of ‘when?’ rather than ‘if’.

One big advantage of mediation is that it is a party-focussed process, so the discussions are about commercial outcomes rather than legal points. Indeed, the outcome may have no relevance to legal rights and be centred on the commercial and personal needs of the parties and can include a multitude of items that are outside the Court’s powers (e.g. delayed, staged or discounted payments, future business, property exchange and so on).

There are of course alternatives to mediation:

  • Early Neutral Evaluation where a (usually retired) Judge or respected legal figure gives an informal, non-binding assessment of the likely outcome if the case goes to Trial.
  • Adjudication where a neutral third party will give a (usually binding) decision on the legal case based upon either a written submission or oral hearing.
  • Arbitration, which is a formal process that is little different to a hearing in front of a Judge although the arbitrator(s) will be expert in the field of the dispute and their decision will be binding on the parties
  • Expert determination where an expert in the field of the dispute will examine the case and make a (usually binding) decision.

All of these are based upon the individual’s interpretation of the relevant law or contract and so do not (cannot) take personal and commercial considerations into account. The outcome is likely to be a money payment and/or an injunction and/or the undertaking of certain action by one party.

Assessing risk sensibly

Assessing risk is key at every stage of a disagreement. People in dispute should regularly consider and update predictions of best and worst-case scenarios, the cost in external fees and internal management time, the effect on the business in reputation, cash flow and so on. There is always a personal cost, which is very difficult to quantify, for few people can so separate problems at work that they do not impinge on home and social life. Being in dispute often feels like a huge cloud of negativity hanging over the people involved and that inevitably affects performance at work and at home.

There are some very sophisticated methods of assessing financial risk, particularly decision trees, which we are able to include in our services.

Developing effective strategies

Alongside the assessment of risk we are able to work with a business in developing strategies in dealing with a dispute in order to get the best outcome in different scenarios. Our extensive business experience ensures a realistic and commercial approach.

Devising creative solutions

As mentioned above, we work towards co-operative solutions that achieve the best outcomes for all parties. This often involves solutions that just are not possible in Court or Arbitration, where a decision is imposed based upon the their intrepretation of the law or contract. Which is why The DARP believe the best solutions can be obtained through co-operation, recognising that the dispute is a joint problem that deserves a joint solution.

Rebuilding fractured relationships

We mentioned in What we do: Dispute Management, about retaining key business relationships. There is no doubt that an adversarial approach to disputes aims for the minimum settlement. Parties want to give as little as possible in any deal, regardless of the frustration and animosity it creates; whereas working together in shaping a solution can generate generosity and respect, rebuilding the trust that disputes often lose. Co-operative outcomes frequently help to rebuild business relationships which can only benefit the business in the future.