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GETTING IT SETTLED

LEGAL

In the beginning there was dispute resolution, writes Kim Franklin. This was primarily litigation and its private, more technically knowledgeable bedfellow, arbitration. There were more colourful alternatives such as trial by combat, but their novelty wore off with the dissolution of the monasteries and the old stalwarts soldiered on for the next five centuries or so.

Then came alternative dispute resolution (ADR).

ADR, the ultimate soundbite, was bandied about without any real understanding of what it entailed. It came from America, where the cost of formal dispute resolution was extortionate. The Americans suggested 'the mini trial', 'expert determination' and 'early neutral evaluation'.

The chattering classes debated the merits of these procedures, but the upshot appeared to be a short-cut to the chase - the ultimate answer without worrying too much about what the question might be.

Grinding away in the background, between the traditional drama of the High Court trial and the opulent ostentation of international arbitration was mediation - the true alternative to slogging it out - negotiated, commercial settlement.

Mediation, which focuses on the real obstacles to settlement and the commercial benefits of overcoming them, had an enviable success rate.

By contrasting the 'best-possible outcome' with 'the worst-case scenario', a mediator can shuttle between willing parties, forcing each to confront their 'worst fears' and thereby 'manage their expectations'.

The result is usually a marvellous 'damage limitation' exercise combining most of the clichés known to lawyers in one big 'blue sky' outcome.

Behind the hyperbole, an experienced mediator once confided that the essential component of a mediator's kit was an umbrella. Apparently, while the courts encourage mediation, they throw the parties out of the building at 7pm on the dot. If you want to commit an embryonic agreement to writing, in the rain, outside court, under a lamppost, you are going to need an umbrella.

It is against this background that the new proposed 'court settlement process' (CSP) must be considered. The judges of the Technology and Construction Court (TCC) suggest bridging the divide between traditional and alternative dispute resolution and have proposed a court-assisted mediation or evaluation process. The idea is that TCC judges may, at the parties' request, act as mediator or, if the mediation is unsuccessful, make a nonbinding evaluation.

This, on the face of it, gives the parties the best of all worlds.

If issuing proceedings does not prompt a settlement, the judge can intervene as mediator. If no settlement results, the judge gives his or her views on the merits at no additional cost to the parties. If the process is still unsuccessful, the action goes to trial but the judge is excluded from acting further in the case.

On the other hand, judges, as with rights-based lawyers, may not be natural mediators.

Some, in fact, have a reputation for generating a fight if left in a room on their own, and any negotiated process depends upon willing participants for its success. Nevertheless, the proposals warrant consideration if only as another device in the dispute-resolution tool box.

Details of the CSP can be found at http: //www.hmcourts-service. gov. uk/ docs/tcc_court_settlement_ process. pdf

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