Haynes and Boone trainee solicitor Jack Spence explains the varied work handled by lawyers specialising in disputes work.
As a trainee in a dispute resolution team, you will work on contentious matters (i.e. matters where a dispute has arisen between parties) and are likely to experience a number of dispute resolution procedures. These will be litigation, arbitration and alternative dispute resolution.
Litigation is what many people think of as dispute resolution; It involves putting your client’s case before the courts, where a judge will make a decision as to the outcome . This can be particularly useful for clients where there is a particularly complex, and uncertain, area of law, which could require determination by a higher court, or where a client wants to be publicly “vindicated” (because the decisions of the English courts are, generally, public). It is also the default forum, i.e. where parties have not chosen in their contract to have disputes resolved in arbitration or by alternative dispute resolution.
Working in a dispute resolution team you are likely to get experience working on various litigation matters. One of the main points to remember in litigation is that there is a requirement to follow the Civil Procedure Rules and its practice directions, as well as the various court guides, all of which are updated from time to time, as well as clarified and interpreted by case law. The English court system has developed an intricate, and fairly comprehensive, system of rules which cover every step of the process, from commencing proceedings and filing the claim form, to drafting witness statements and skeleton arguments, and it is important that the rules are followed, to avoid the possibility of your client’s claim being struck out (or other sanctions imposed).
For many clients, the public nature of court proceedings can be a significant disadvantage. They may want to avoid commercially sensitive information being brought up in public or may want to preserve their relationship with the other party to the dispute (which can be challenging following a public win over the other party in court).
Arbitration is a consensual procedure that offers these clients an opportunity to have their dispute resolved, largely in private, by an arbitrator (typically a retired judge or barrister) who can consider the arguments advanced by both parties and determine what the outcome should be. English arbitration is particularly well respected internationally because of strong reputation of English arbitrators and pro-arbitration judiciary.
Once an arbitrator issues their decision, called an “Award”, this will generally be directly enforceable in any of the countries which are party to the New York Convention on the Recognition and Enforcement of the Foreign Arbitral Awards (which covers most of the world!), making arbitration particularly appealing to companies engaging in international transactions.
Alternative Dispute Resolution
As well as arbitration, there are a large number of other potential mechanisms that disputing parties can use to resolve the issues between them. During a training contract you may for example see a mediation or expert determination.
Mediation involves the parties essentially discussing the dispute, with the assistance of an independent mediator. This third party can sometimes help parties understand the other party’s position or the potential weaknesses in their position and promote early settlement. Mediation can help parties to avoid the need for protracted and potentially expensive legal disputes.
Expert determination can be particularly useful for complex technical issues and involves asking an expert to determine a technical issue or dispute (typically a technical question, but it can also be a question of law) and agreeing to treat the expert’s answer as binding. While this can be particularly useful where there are complex technical issues this has the disadvantage, relative to arbitration, that the decision maker’s decision is not directly enforceable (unlike an arbitration award) and you may therefore need to bring separate court proceedings before you are able to enforce the decision.