There are two sides to legal battles. Fighting the system and fighting your opponents. As most of those who have been through legal battles will do their utmost to avoid another we realise that we are writing for first time readers. There is much reading to do and we recommend approaching the task as if it were undertaking a course of study. If you find any useful sources let us know and we will link it in here. We are not a lawyer so do not take sides but we do like to see the best case fairly put forward.
By fighting the system we mean overcoming the problems of setting up the process to run: Be it taking out a summons to bring your opponent into the county court or agreeing on an arbitrator to decide for you. Perhaps you take the view that while you disagree you see no need to be disagreeable about it. After all, there are two sides to every question.
Alternatively, and particularly if there is good reason to carry on doing business with your opponent, there is mediation. You may come out of mediation with new business ideas. Then you both come out ahead as well as restoring the old business relationships.
However you go forward with your dispute resolution it is highly unlikely that you will get everything you are seeking. Neither will you get all of your costs back. Taking out a summons is easy and not that expensive but only two and a half percent of the cases come to trial so there is a lot of money going off in costs, as the lawyers call them, to no good effect.
The courts
No one can be denied access to the Queens
Courts. That is one of our freedoms. Look up Courts in the telephone directory,
go along and they will give you a form, and price list and some free leaflets.
Fill the form in correctly, pay the fee and the wheels of justice will grind
fairly quickly. You may obtain the forms etc on the web and follow no end of
links for advice.
The court office will tell you what the system requires you to do but for legal advice try the Citizens' Advice Bureau, a local Law Centre manned by volunteers, or a solicitor. You can usually find that a solicitor will give you half an hour of his time for free so use it effectively. Solicitors like everyone else have to deal with enquires for free if they want new business. Clarify in your own mind why you are going to these people. Do not waste time bothering to try to convince them that you are right yet, you probably want to know what your rights are and how to go about obtaining redress. No one can deny you your right to go to court to obtain redress against Littlewoods for allegedly losing your winning pools coupon but under the law you would have a better chance of getting a return on your money by investing it on another coupon.
An arbitrator (arbiter in Scotland) There are very few very experienced arbitrators. Untrained arbitrators and those that work like judges can be anything between a disaster and a disappointment. On the other hand an arbitrator who knows more about the subject matter than those in dispute and understands what he is supposed to do can put his finger on it right away.
The Chartered Institute of Arbitrators trains and grades arbitrators by examination and experience. They will give you a list or you may find someone on their website. Be warned, most members are either in building and construction or are lawyers. Some lawyers have difficulty making the transition to arbitrator.
The "standard" way to find an arbitrator is to ask the Chartered Institute in the technology involved to give you their list. If you suggest someone to your opponent expect a rejection. He will reason that you would not have named whoever you did without good reason and anyway he's putting off the evil day by rejecting. If simultaneously posting each other a copy of the list with ticks against acceptable names does not work try asking for the President of the relevant Chartered Institute to appoint an arbitrator for you. The President doesn't do the arbitrating, he just says who does.
Arbitration before a technical arbitrator. Starting an
arbitration
By a technical arbitrator we mean someone practised in
the trade or profession where the dispute arises. A glassmaker who doesn't have
to be told what a lehr is and why it is needed. A shipbuilder who knows about a
ship's lines or tween decks. An accountant who knows that transposed figures
always produce a difference of nine. Someone from the clothing trade who knows
that a passer is an inspector who fixes any faults he finds and that a mantle is
not just over the fireplace. A motor vehicle manufacturer who understands what a
white body is. The list is endless, as each trade has its own jargon but in each
case the understanding of the technical arbitrator, if used to advantage, will
save no end of cost and effort that has to be expended in making absolutely sure
that a non- technical person can understand what the case is all about.
Barristers who have the task of educating judges often have to find a way to put
their cases without the "too difficult" technical explanations being dealt with.
If you do not have a technical arbitrator - a lawyer perhaps - then realise that
you will have to educate him like a judge is in court.
Mediation
Appointments as Mediator are made in much the
same way as arbitrators. The training body is CEDR but they do not have such a
monopoly as the Arbitrators' Institute. The Academy of Experts also train
mediators.
Mediation has been much hyped and quite justifiably so. Consequently there are a considerable number of trained but inexperienced mediators sharing perhaps 80 mediations a year through CEDR.
As we have said, most court cases do not come to trial and this is because the lawyers having seen all the evidence (and that includes the other sides, expensively) negotiate a settlement. Alternatively of course many cases are for debts where the debtor just pays up or is not worth pursuing, so the cases just die.
Med/Arb
A contraction of Mediation followed by
Arbitration Med/Arb is not favoured by the professionals. The fear that the
parties will hold back in the mediation or the arbitrator will base his decision
on what he learnt in the mediation. This applies if the same person is to be
mediator and then arbitrator is no agreement is reached.
Our own view is that the threat of a handed down arbitral award will bring the parties together to agree something in the mediation and if it does not the truth will out in the arbitration. Under the Arbitration Act 1996 the whole Med/Arb arrangement could be called an arbitration if that is what the parties wish. There is a precedent (lawyers' jargon for a form of words) available for those prepared to break new ground.
There is no magic in how you prepare your case. The lawyers will see that it is presented in a manner that conforms to the court rules. The facts have to be got out and those that are so close to things that much is taken for granted can easily overlook making a point that puts much else in meaningful context. Remember not to use jargon but if you must, put two adjectives in front of each jargon word to give your readers more context and greater understanding time. Hairy hooray jokes about an Englishman explaining cricket to a foreigner illustrate the problem nicely.