This works in the best interest of the Parties, as the cost of going to court can often greatly exceed any sum of money that might be saved, or ‘won’.
The principal forms of ADR operating in respect of commercial property disputes in the UK are:-
- Independent Expert Determination
Arbitration is a strict and formal process, conducted pursuant to the provisions of the Arbitration Act 1996. Whilst arbitration can involve formal ‘hearings’ at which the Parties are each represented before an Appointed Arbitrator, they are most commonly conducted on a ‘documents only’ basis. In this way, the Arbitrator is appointed (usually with provisions enabling that being provided within the contract under which the dispute arises), and the Arbitrator requiring that each side presents a ‘report’ detailing the evidence which supports the opinions they are advancing, and outcome they are seeking. There are usually then opportunities for each side to comment on the other side’s position. The Arbitrator will ultimately make a formal ‘Award’ detailing the decision arrived at and the reasons behind that decision. This ‘Award’ is as binding as if it were a court judgement.
An Independent Expert is a common alternative to an Arbitrator, and is similarly appointed through a mechanism within the contract under which the dispute arises. The conduct of a reference to an Independent Expert is purely contractual and not subject to any particular governing statute. This form of reference is however commonly conducted as if it was an arbitration in practice, in that each side will prepare and present reports to the Independent Expert, along with Replies. However, unlike an Arbitrator who is restricted to considering only the evidence advanced by the Parties, an Independent Expert is free to (and indeed should) make their own enquiries and apply their own experience and judgement in arriving at what is called a ‘Determination’, instead of an ‘Award’. It is similarly binding on the Parties, however is actionable under the contract, as opposed to under statute as is the case for an Arbitrator’s Award.
An Independent Expert is not obligated to provide the ‘reasons’ behind their decision, but commonly will at least provide a brief explanation.
It is worthy of note that an Arbitrator cannot be sued. Conversely, an Independent Expert does owe a ‘duty of care’ to the Parties and therefore can be pursued for negligence.
Mediation - Unlike Arbitration and Independent Expert referral, mediators do not arrive at any decision, or Award. Rather, mediation should be considered to be ‘assisted negotiation’.
Mediation is a strictly confidential process, tends to take the form of a one day gathering of the Parties and their advisors with the Mediator (commonly in one of the offices of the solicitors involved), and each party will pay one half of the Mediator’s fees.
The Mediator will have been provided with a summary of each party’s position prior to the Mediation Day.
The skilled Mediator meets with the Parties (in private ‘break out’ sessions, as well as together) to assist them in objectively appreciating the strengths and weaknesses of their respective positions. The Mediator is working with the Parties to assist in finding a logical and sensible compromise in lieu of litigation. It is a fact that some 85% of mediations result in a binding negotiated settlement reached either on the day, or within a few days following.
Our senior team are regularly involved in representing parties in mediations, as well as conducting mediations in the capacity of RICS Accredited Mediators.
Dispute resolution of commercial property matters, be that in court or arbitration, requires the use of recognised ‘experts’ to present evidence on your behalf to assist the tribunal in reaching its decision.
It is absolutely crucial that the skilled Expert Witness is not only highly knowledgeable in their field, but capable of and well versed in writing and presenting evidence from an objective perspective, avoiding any advocacy. If a tribunal (judge or arbitrator) considers that a so-called ‘Expert Witness Report’ contains advocacy - loaded and biased arguments - then far less weight will be given to it than to the report presented by the Expert for the other side. Indeed, it may be dismissed altogether. At Raeburn Consulting, we provide a network of the most seasoned and accomplished Expert Witnesses in the disciplines of both chartered valuation surveyors and chartered building surveyors, with well proven track records expertly presenting evidence which withstands the most vociferous of cross-examination so as to secure best outcomes in specialisms including:-
- Negligence Cases
- Rent Review
- Lease Renewal
- Building Surveys