Arbitration
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A recognised advantages of arbitration is its potential to expeditiously resolve disputes. This is a considerable advantage to the commercial sector on whom delays in reaching a binding outcome can impose real difficulties. While It is recognised that efficiency and dispatch are required, at the same time, a careful and patient analysis of the case has to be undertaken to ensure a just outcome.
From his years of judicial experience, Jeremy Doogue has come to appreciate that assisting the parties to focus on the actual issues in the case, and setting early but realistic hearing dates means that all of these objectives can be achieved. In his experience, parties will usually be assisted by setting a reasonably early hearing date and thereafter issuing a decision without undue delay. The parties can have confidence that these objectives will be achieved if the arbitrator has a track record of issuing decisions promptly. It is also important that the arbitrator has the qualities necessary to accurately resolve factual and legal disputes so that the decision is fair, is based on accurate factual findings, and that it accurately reflects that current state of the law. It is only if all those factors are present that the parties can be confident that the decision can be relied upon as being final so that the parties are not faced with subsequent appeals.
Mediation
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Jeremy Doogue is a trained mediator. As well, during his 20 plus judicial career he chaired many Judicial Settlment Conferences. The JSC process has close similarities to mediation in that a successful outcome depends on the skills of the mediator to guide the parties to an agreement. Successful outcomes in mediation requires a flexible approach. In some, the mediator’s evaluation of the key issues may, if requested, assist the parties to find their way to a settlement. In others, a party’s inabiity to progress may be because they cannot bring themselves to accept a particular outcome, even if that is likely to be the result a court would come to. It is particularly important for the mediator in these type of cases to inter-react with the parties in a tactful, patient and understanding way.
Litigation Consultancy
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One of the services offered is litigation consultancy. The purpose of the service is to assist counsel or soliicitors instructed in a case by providing a closely focused review of their client’s case in one or more key areas. It can be helpful to obtain an objective review of disputes before legal proceedings have issued or, once they have been started, to review their prospects of success. This may result in an ultimate recommendation that proceedings should be issued and advice on their form. Alternatively, if the dispute is more suitable for a compromised settlement, advice can be provided on the party’s negotiating stance.
Independent advice is of particular value at other critical points in the life of a legal dispute. For example, a review may be cost-justified when the stage has been reached in a court proceeding where the party must decide whether to bring an interlocutory application such as a strike-out applicaton or where summary judgment may be a possibility. The decision to proceed down the summary route can be a finely balanced on. Another point where the advisor can assist is when the stage has been reached where extensive (and expensive) briefing of evidence is shortly to be required to read the dispute for the next stage. The reviewer can, in a relatively short time-frame, provide an objective commentary which may cover the followiing matters:
reviewing the evidence to ensure that a key point/s in the litigation is/are focused on;
checking whether pleadings require attention particularly in the light of evidence or submissions from the opposing side;
advising on whether evidence in reply is desirable and is permissible;
considering draft submissions and advising on any areas in which they need strengthening;
reviewing opposition submissions to consider possible counters to key arguments;
providing advice on strengths and weaknesses of case for purposes of impending settlement negotiations.
A short brief is required ahead of the review defining the ambit of the what the object of the referral is. This has the incidental benefit of focusing the client and advisors on what the key areas of concern are.
The object of these reviews is not to provide a critical assessment of the work counsel has done to that stage, but rather to work in a cooperative and supporting way with them by providing cost-effective assistance in accomplishing the objectives of the litigation. At the same time the review will only be helpful if it is reasonably rigourous and questions some of the assumptions that the case may have been based on up to that point.
Normally these consultations will take the form of a meeting at chambers or at the party’s solicitors’ offices but video conferences can also be used to discuss the case.
Because the review is confined to particular areas and takes place over a limited time, it can be a financially efficient way of negotiating past obstacles in cases and improving the chances of an acceptable outcome.
If the review is successful, counsel/solicitor whose file it is, should be reasonably confident that there is nothing crucial that has been overlooked. As well, the result of the review may be to assist the client and their lawyer in regard to a part of the case which has proved troublesome or difficult for them to manage.