Here are a few answers to the most frequently asked questions by attorneys and their clients.
Q: I am in litigation and the matter involves finance. If I do not use my own lawyer and my own expert, I am told that I will lose control of my case.
A: You will lose control of your case in any event when it is handed to a judge or arbitrator who has to decide which side is right. You are free to use your solicitor for advice in our procedure if you wish but will have to cover his costs.
Q: With my own expert I can make sure that I present an opinion that supports my case. If the expert is on the tribunal or advising the tribunal, I do not know if I even have a case.
A: Whilst this is true in the adversarial system, the other side will do exactly the opposite, thereby neutralising any advantage you might gain by presenting a favourable opinion.
Q: How will costs for a non-adversarial arbitration be fixed and how will they differ from conventional litigation?
A: Our costs will normally be a percentage of the amount in dispute. The parties will know exactly what their maximum liability for legal and professional fees is going into the proceeding. With the exception of contingency fee arrangements, which are only available to claimants, it is unusual – if not exceptional – for legal and professional fees to be fixed. The client in conventional litigation has some control over the charge per hour but no control over the amount of time that is spent.
Q: You say that when facts are in dispute lawyers are not the best persons to decide a dispute. What if there are complicated legal issues?
A: There are very few cases that involve complicated legal issues. There is only one court of appeal in England and only one Supreme Court. There are, by contrast, numerous courts of first instance. Most arbitrations are based on contract disputes. These usually turn on the terms of a contract and what they mean or what is implied. The law of contract is relatively simple in principle. The parties made promises to one another; they must comply with their promises. An expert in the particular area of dispute is better placed than a lawyer to understand the terms of a contract and its meaning.
Q: I think that I have a good case and I can pursue an action in England where my legal and professional fees will be paid by the losing side. Why should I care what fees I incur?
A: You will never recover all your costs if you win. The convention for recovering fees and costs is time consuming, costly and often obscure. The losing side has to pay only those fees and costs that are “necessary and reasonable” in amount. Very detailed bills of costs have to be drawn up and a detailed line-by-line argument about the amount of time spent and whether it was necessary is then carried out. The assessment of costs is similar to a new legal case with winners and losers and the winner getting some of his costs paid by the loser. It is not unknown that the cost of the exercise of assessing costs will itself cost more than the cost of and time spent on the actual case. In general, only 2/3 of costs are recovered. Often the recovery can be as low as ½.
Q: How can I be sure that the Arbitrator will identify and consider all the facts and legal issues that are relevant?
A: The Arbitrator is obliged to consider and address all the legal and factual issues that the parties identify. The parties will normally retain lawyers and experts to identify the dispute and the particular issues. These will be placed before the Arbitrator. In our non adversarial arbitration procedure the Arbitrator takes over from that stage.
Q: Lawyers, particularly advocates, are very eloquent and much more able to put my case persuasively than a lay person. Surely I will lose this valuable advantage.
A: The eloquence of one side will likely be offset by the eloquence of the other, and it is unlikely that a judge is persuaded by the form rather than the substance of an argument. Our non-adversarial arbitration involves a dialogue between the Arbitrator and the parties so that the real facts are elicited. Each party discusses his case with the Arbitrator as if they were discussing it with their lawyer. The only difference is that the Arbitrator is impartial and all discussions, facts and arguments are known to the other side.
Q: Nearly all litigation ends up with a financial calculation of damages. Is this a legal issue or a factual one?
A: Damages are based upon legal principles that are simple in theory. One has to evaluate the financial effects of the wrong. The difficulty occurs in applying the maths to the principles. Financial experts are more likely to apply the principles correctly than lawyers.
Q: Why would an Arbitrator assisted by an expert or lawyer take less time than the adversarial procedure?
A: Much time is wasted in conventional proceedings by parties not addressing the points made by the other side. During the hearing the two sides are compelled to address the points made by the other side if they are relevant. The procedure for doing so however is wasteful and involves a lot of repetition. Our non adversarial approach involves questioning of the parties by the impartial Arbitrator who is an expert in the particular area of dispute. The Arbitrator asks the questions he considers relevant and is not obliged to base his decision on the questions that the parties consider relevant. His decision is therefore more likely to be correct.
Q: When I use my own lawyer, he tells me what I should say and what I am entitled to hide from the opposition. In non-adversarial arbitration, will I get the same opportunity to hide those facts that do not suit my case?
A: No – the non-adversarial arbitration process requires complete candour. Each party puts all the relevant facts to the Arbitrator and the other side. There are no secrets. The litigation process in courts is designed to avoid surprises and for the other side to see any evidence that may suit their case. The opportunities for hiding facts that assist the other side may exist in practice, but are not part of the normal system of justice. Formal proceedings might indeed lead to the winner being the party who knows and uses the rules best rather than the party who is right. Our less formal proceedings ensure that knowledge of the rules is always subordinate to justice.
Q: How can you afford to make the proceedings so much cheaper? Do you cut corners?
A: We will not cut any corners. All the facts and circumstances will be investigated and all the legal issues will be properly considered. Our costs are lower because the number of professionals involved is much smaller. In a normal adversarial action each side has a solicitor and barrister and an expert, as well as a judge or arbitrator who is usually a lawyer. In non adversarial procedure there are only two professionals, a lawyer and an expert. Not only are the number of professionals whose fees have to be paid reduced from 7 to 2 but little time is spent in argument. The facts are obtained by the tribunal not through examination and cross examination but by direct questioning by an impartial investigator.
Q: If your decision is wrong in law how will and I know and will I be able to appeal.
A: You will know because the award or decision of the tribunal will be a reasoned decision. If any of the reasons are clearly wrong and contrary to law you will be able to appeal to a court for the decision to be reversed.
Q: What are the significant differences between the non adversarial arbitration and the conventional English adversarial system?
A: The most significant difference is that there are no arguments and no examination and cross examination. The tribunal searches out the facts directly from the parties who are expected to put their case and state the facts truthfully. The tribunal makes its own decision as to their truthfulness. Where facts are disputed and there is no corroborative evidence the tribunal faces the same problems as a court of law. In courts of law the judge of truthfulness traditionally was the jury. It still is in many common law countries. Where the tribunal is not a lawyer this tradition is maintained in non adversarial arbitration.
Q: Judges who are lawyers have been deciding cases for generations. Why do you think that an expert in finance would be more able to reach the correct decision in a finance case than a lawyer.
A: In many common law countries and for many generations until the process was abolished in England juries decided facts in courts of law. In complex financial cases many believe that juries should be replaced by expert juries. Our approach applies the principle that issues of fact are best decided by an expert rather than a lawyer.
Q: Lawyers have been calculating damages which frequently involve complicated financial calculations for generations. Why would a finance expert be better able to reach the correct decision.
A: Lawyers are not trained in complex calculations of financial future losses. They frequently get the answers wrong. The history of damages assessments reveals many inconsistencies. Finance experts are trained to calculate profits and losses and to assess and properly calculate the time value of money.
Q: Examining witnesses and cross examining them is surely the best way of getting at the truth. Why would the non adversarial inquisitorial system be better.
A: It is not necessarily better. It is definitely cheaper. When witnesses disagree there is no evidence that the adversarial system is better able to discover the truth than the inquisitorial system.