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Is expert determination an alternative to Court Proceedings?

View profile for Rebecca Rogers
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What are the alternatives to Court proceedings in order to resolve disputes?

There are various ways to resolve disputes rather than simply issuing a claim through the Courts.  Litigating through the Courts is not a quick process. There are lots of steps which are required to be taken (known as directions) and as such, significant costs may be incurred. Alternative Dispute Resolution (ADR) may therefore save time and the expense of litigation. ADR comes in a variety of binding and non- binding forms.

What forms of ADR are available?

There are many forms of ADR available to parties, including but not limited to negotiation, mediation, expert determination and early neutral evaluation.

What is mediation?

Mediation is where the parties, with the assistance of a neutral third party mediator, identify the issues in dispute to see whether such issues can be narrowed and attempt to reach settlement in respect of the same. Parties still remain in control of any decisions made and settlement reached.

What claims/ disputes it is useful for?

Most cases are suitable for mediation. Mediation can also be used to settle part of a dispute.

When is it not suitable?

Mediation is not however usually suitable for cases which involve a significant point of law in which a party may wish to refer to Court so that a Judge can decide on the point of law.

What is expert determination?

Expert Determination is a method of alternative dispute resolution. It is most suitable for disputes which require a technical opinion or decision.

What claims/ disputes it is useful for?

It is particularly useful for disputes where an expert or professional opinion or valuation is required on a technical matter or issue.

For example, whether or not goods supplied meet the required specification or implied terms as to quality.

When is it not suitable?

It is not suitable for claims which involve a substantial dispute as to fact or as to law.

Do you have to agree to use expert determination?

You should check the contract between the parties. Some contracts provide for expert determination as a means of resolving disputes rather than the issuing of Court proceedings. If there is no contract between the parties or the contract does not provide for expert determination you can still propose this to the other party as a means to resolving the dispute.

What are the advantages?

Often matters require expert opinion to decide on an issue or matter. Even when court proceedings have been issued, a party may request or a Judge may order that expert evidence is required.

Expert determination therefore allows parties to appoint an expert to decide on a technical issue or matter but without the need, expense or time involved in issuing Court proceedings.

It is therefore quicker and more cost effective than issuing Court proceedings.

Is it binding?

Parties should agree that the expert’s decision is final and binding.

What is early neutral evaluation?

In an early neutral evaluation, the neutral independent third party, who is likely to be a judge, retired judge or Queen's Counsel, hears each party's submissions and then states his view on the likely outcome at trial.

What claims/ disputes is it suitable for?

It is useful for claims involving a substantial dispute of law.

What are the advantages?

It gives parties an indication of a Judge’s likely outcome at trial early on in the proceedings and in particular before the costs of going all the way to trial have been incurred. It is also useful for parties who “want their day in Court”.

Is it binding?

Whilst it is a non-binding form of alternative dispute resolution and whilst the view is without prejudice (off the record) it does give parties an indication of the likely order that will be made and parties may be unwise not to attach weight to the same.

For more information call Rebecca Rogers on 01562 820181 or email