No matter how hard they try, most of our judges just can’t hope to understand the detailed arguments in technology-based cases. Expecting them to deal with spalling bricks in a construction dispute one day and the internals of computer chips the next is simply asking too much.
While judges might know the law, they can’t hope to apply it fairly without getting the technical aspects of the case right. The result, as any technical expert witness will tell you, has been some very questionable judgements based on unfortunate misunderstandings of technical issues.
As specialists in the highly technical fields of electronics, microelectronics and software, Innotec’s expert witnesses get involved in technical disputes all over the world, and in forums ranging from mediation through arbitration to full-blown litigation. That gives us a good insight into the relative merits of each approach. So which is the best route to a fair resolution of a technical dispute?
Obviously, it depends on the type of dispute; but in my experience, no matter how hard you try to simplify and explain, nontechnical judges just can’t hope to understand all of the technicalities that have taken me tens of years and a PhD to master in the space of a few short (or seemingly very long) hours in the witness box.
The big advantage of alternative dispute resolution techniques such as arbitration is that they are driven by the parties. They can decide how complex or simple the process will be and, vitally, who the arbitrator will be – so they can choose somebody with an appropriate technical background.
That doesn’t mean that they don’t still need to make their cases, but at least there will be a good chance that the arbitrator will understand the technical issues that are being presented to them.
And it doesn’t stop with the choice of arbitrator. The parties can drive the whole process, from how much evidence will be presented, through whether a formal hearing will take place to how costs will be awarded. The Arbitration Act allows a massive amount of flexibility in approach. That means that the cost of the process can be minimised and the process chosen to fit the dispute. It contrasts very favourably against the ‘onesize-fits-all’ approach of litigation