While there are as many commercial disputes between companies today as there have always been, the trend in dispute resolution in recent years has been towards a greater use of alternatives to litigation. Indeed, the Civil Procedure Rules (CPR) themselves have not only increased the speed of the civil litigation process, but have encouraged parties to try to resolve disputes at an earlier stage in the process, for instance by use of part 36 offers and further negotiation, and by the use, at the court’s direction, of mediation.
One form of alternative dispute resolution (ADR) increasingly being used nowadays is expert determination. Essentially, this is a contract-based process in which an independent expert, in the relevant discipline, is appointed by the parties to a dispute to determine the outcome. The parties accept that this determination is then binding, subject to manifest error on the part of the expert. The expert, therefore, has a quasi-judicial role.
