I have suggested previously that it may not be possible to give considered advice as to the merits of a dispute until the evidence from all parties - that is, their documents, experts' opinions and witnesses' statements - has been prepared, exchanged and scrutinised. How can the parties be helped to resolve their dispute without paying for all this expensive preparation? We should bear in mind, of course, that the sign of a good settlement is that no one is happy with it: someone reluctantly pays more than they wanted to a recipient who believes he/she has been short-changed. That aside, of the two alternatives which immediately present themselves, limiting preparation and mediation, I shall consider the former.
What tends to happen with most disputes is that no limit is put upon the amount of preparation for the various stages involved. Thus, although the pleadings ought in theory to define the issues between the parties, many see this as a paper exercise to be gone through by the lawyers. The parties then tackle discovery of documents.
Although they are obliged only to disclose documents which are relevant to the dispute, the process of sifting what can be a vast array of documents, leads many to disclose all the documents they have relating to the entire contract, not just the dispute. This may save time and money in the short term (though the cost of photocopying and listing alone can be considerable), but the cost of repeatedly photocopying irrelevant documents for the other side, the experts, counsel, the judge and so on, and the time spent reading them is wasted. Then the experts are engaged.
Experts vary in their experience, ability and approach. They tend to investigate the matter from scratch and to set their own agendas, which may not coincide. Frequently the first round of experts' reports are very different in both style and content. Supplemental reports are often required to ensure all the issues raised by the experts have been dealt with by the experts.
Witness statements can share a similar fate, depending upon the experience of the draughtsman (who is seldom the witness) and the recollection of the witness. It is only when a list of issues is required by the judge, shortly before the pre-trial review, that the team has an opportunity to reflect upon the issues and the evidence.
Realising that this approach to dispute resolution may produce a Rolls Royce result, when the parties would have been equally happy with a Mini, some tribunals propose that a list of issues be agreed after pleadings. This takes time and application but, once the parties have agreed what it is they are arguing about, preparation can be trimmed to deal with those issues only. Only the documents relevant to the listed issues need to be disclosed. This is a bit a of a slog for someone, but it saves numerous equally qualified and costly professionals from repeating the task in the future.
Similarly, the experts are asked to address those agreed issues requiring expert opinion. They are supplied with the headings for reports and without- prejudice meetings. Once exchanged, the experts' reports can be readily compared. This applies equally to the statements of witnesses of fact.
With the issues identified from the outset, the parties would be better placed to reassess the merits of their claims as the evidence is produced. As the scope of the dispute is narrowed, so there is less to be gained by proceeding. Alternatively, the hearing may proceed upon a handful of clearly defined issues, upon which the parties require a decision. And, of course, an agreed list of issues provides a useful and time-saving agenda for the hearing.