Decisional Processes

Independent / Expert Decision Maker

Decisional ProcessesWe’re engaged to investigate and evaluate specified facts or situations and are required to make a decision on same, in writing, based on our instructions. We may be appointed as experts in the field of our decision, or simply as credible professionals without expert knowledge.
We’re appointed by all relevant parties, who have agreed, contractually, that they will be bound by our decision.

This process provides the fastest, most informal and least expensive way we know of obtaining a legally binding decision on any referred issue. It’s typically used for small matters where the parties simply want a decision to be made that they can live with and that will allow them to get on with their lives.

Expert / Binding Determination

We’re engaged, usually in response to the dispute resolution clauses of a commercial or partnership agreement, to manage a process of gathering information and submissions to either: (a) make a determination on the documents alone or (b) preside over a hearing that allows the parties, or their representatives, to make live submissions, respond to each other’s questions, and generally provide the information necessary to make a legally binding determination on the referred issues.

The authority for the process is contractual and legally enforceable – either through an existing contract, or through our engagement process.
Expert Determinations are even more flexible than modern arbitrations because they are an entirely contractual construct, and can therefore be made to do virtually whatever the parties want, and the expert is willing to undertake. They are therefore very quick and cost-effective, while still providing a definitive outcome.

Arbitration

Arbitration is a private, decisional process that can be commenced by any two or more parties who agree to arbitrate — either under a contract, by legislation, or by simple written agreement. A properly designed, well managed arbitration process can be one of the most effective ways of resolving any commercial dispute.

The arbitrator is usually an expert in the area of the dispute, eg: an accountant or engineer, so there’s no time wasted educating them in the technicalities of the case. Our Jon Kenfield is a chartered accountant and a grade 1 arbitrator, confirming his ability to deal with the most complex commercial disputes.

Arbitrations are conducted under the Commercial Arbitration Acts. The Acts give arbitrators most of the power and authority of a Supreme Court judge. It also encourages them to use this power to ensure that the process is quick, fair and cost-effective.

The arbitrator is required to manage the entire process efficiently. It may be based on documents alone, but usually involves one or more quasi-judicial hearings.

The process can be almost as formal or informal as the parties desire, whether or not lawyers and other experts are involved. Inevitably, the more formal the process, the lengthier and more expensive it becomes.

After all the information and argument have been presented, the arbitrator produces a written decision, called the “award”. The award is legally binding on the parties and is enforceable through the courts, like a court judgement. The award provides finality because it can only be appealed on very restricted grounds – and even these can be excluded by agreement.

Our arbitrations can deal with the largest and most complex of commercial disputes. They usually take a few months to resolve – an attractive proposition compared to the years such disputes usually take in court. Smaller and less complex disputes are usually resolved within a matter of a few weeks.

We’ve estimated that our arbitrations usually take around 10% of the time and cost they’d consume in conventional litigation – and parties are generally more satisfied, because the process is more involving and easier to understand than court processes. Also, both the problem and the solution remain confidential – a critical factor in sensitive commercial and family disputes.

shutterstock_124331236Private Judging

Private Judging is another form of arbitration that uses a retired judge as the arbitrator.

We prefer to use judges to make rulings on specific issues, rather than manage entire processes, and have found this particularly effective in family law matters. The retired judge listens to the parties and provides an informal, highly persuasive opinion on the merits of each parties’ case. This enables, or encourages them to reality check their situation and then decide how best to proceed. In most cases, a relatively painless mediation produces a rapid and cost-effective result.

Non-Binding Evaluations

Independent / Expert Factfinding

This can be a standalone, rapid response process, or a component of a larger process. It’s designed to help resolve problems while they are still just problems, rather than full-blown disputes.
Our expert investigates specified (and limited) facts and makes a decision about just those facts, the parties having agreed to be bound by their decision. This helps to narrow the facts in dispute and clarifies party’s perceptions.

Independent / Expert Appraisal

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This is another option we offer as either a standalone process, or as a component of a larger process.
Our expert investigates specified issues and makes a decision about just those issues. The issues can be very tightly defined, or as broad as the entire dispute. The parties agree in advance to be legally bound by our expert’s decision. This helps to clarify party’s perceptions of issues and the strengths and weaknesses of their case. It often helps to resolve disputes before they get out of hand and start costing too much money to resolve.