AS AN accountant in general practice for over 20 years, I have come across commercial disputes in a variety of forms: between partners, shareholders, family members and trade competitors.
Disputes can become protracted, costly to settle and eventually result in a solution which satisfies neither party. However, there are alternatives which can offer a straightforward and structured method for the resolution of commercial disputes, and I am actively engaged in three of them.
Mediation is a consensual and private session between the parties, which is managed by a trained mediator. The parties work in separate rooms where they have confidential discussions with the mediator.
The mediator, at all times impartial and non-directive, will communicate between the parties to facilitate an agreement acceptable to both sides. If an agreement between the parties is arrived at, it is committed to writing and is then binding on both parties.
Arbitration permits the parties to opt out of the conventional legal process and select someone with relevant technical expertise to resolve the dispute. Once appointed, the arbitrator, who has a duty to act fairly, will decide the most effective way to receive arguments and evidence from both sides.
Some will involve hearings and other will be decided by documents only. The final decision of the arbitrator is binding on the parties.
Expert reports. Some disputes can be settled by an expert acting as an independent referee to determine a specific and defined point at issue. The appointed expert will decide the most appropriate way to obtain the information in order to determine the matter. His final decision is binding on the parties.
In my experience, these alternative methods of dispute resolution can enable the parties to bring an apparently insoluble dispute to a clear conclusion so that they can get back to commercial reality. This is a simple and cost-effective procedure which can often be used to clear away a stumbling block in a protracted dispute.
My experience of the settlement of commercial disputes through the legal process is that the client, even if successful, finds that the length of time, uncertainty and professional costs involved detract from the sweet taste of victory. The whole process also detracts from what the client would like to be doing, namely getting on with their business.
These alternative methods of dispute resolution can enable the parties to bring an apparently insoluble dispute to a clear conclusion so that they can get back to commercial reality.