David Bunker Newsletter 2023

David has had a long standing involvement with Dispute Resolution, and is a long established Member of the Chartered Institute of Arbitrators and the Academy of Experts. He has acted as an Arbitrator in both formal hearings and written matters, and has acted as both a Single Joint Expert and Party Expert on numerous occasions. These experiences have enabled him to apply his Accountancy expertise to a wide range of issues; shareholder and partnership disputes, business valuations, professional negligence claims, matrimonial disputes and insurance claims. He welcomes the range of work and professional challenge that each assignment demands

I have been involved in resolving a great many commercial disputes either by means of Arbitration or by Mediation.I have a great respect for both processe but find it inescapable that some disputes get settled by Arbitration when Mediation would have been more appropriate and vice versa.

In this article I will highlight the salient differences and give some pointers as to which process to use.

The first difference is the availability of the process. Mediation is available as an option before proceeding to trial for almost any commercial dispute. Indeed, it is positively encouraged by the Court, who are likely to penalise a successful litigant who has declined to first try Mediation by restricting the Costs awarded. By contrast an Arbitration can only be entered into if there is a contractual agreement that Arbitration can be invoked in the event of a dispute, which pre- dates the dispute that has now arisen.

Both methods of Dispute Resolution are often presented as being relatively informal. This aspect has, perhaps, been overstated Both methods do offer a route for resolution of the matter in question without the formalities, costs and timescale of the Court, but they have built up their own procedures Both procedures can proceed as fast as both Parties are able, at a venue mutually agreed, and to that extent there are obvious cost savings.

In my experience a Mediation can be arranged more quickly than an Arbitration Hearing I have never been involved in an Arbitration Hearing where the Parties did not opt for a quasi judicial setting, with Counsel representing each side and Court formalities observed.

The crucial distinction between the two procedures is that an Arbitration results in a decision which is binding and a Mediation does not At the end of a Mediation the Parties can either come to an agreement or accept that they will meet each other again in Court.This is simply not the case with an Arbitration; the Arbitrator will provide a decision which is very difficult to overturn.

This crucial difference has a significant effect on the approach and demeanour of both Parties In my experience, some Parties enter a Mediation simply to test out the resolve of the other Party. This cannot be the case with Arbitration. The Arbitration Hearing is the first and final opportunity for each Party to present their case before an independent third party.