Anyone involved in the management and resolution of commercial disputes should be familiar with the wide range of dispute resolution options which are available over and above court litigation (or its established alternative, arbitration) and keep them in mind when drafting dispute resolution clauses in their contracts. The more traditional routes of litigation and arbitration may not necessarily be the most appropriate choice.

In addition, for those already involved in litigation or who intend to litigate, it is important to be aware that promotion of alternative dispute resolution (ADR) is one of the key ways in which the courts are trying to reduce the costs of the litigation process. The civil courts system in England and Wales is experiencing a period of significant reform and the focus now, more than ever, is on litigating at proportionate cost. Parties should explore all options for settlement in the early stages of a dispute and respond promptly and constructively to any settlement approaches made by the other party. Failure to do so may lead to costs penalties.

While mediation is probably one of the most well-known of the ADR options, this article considers expert determination, which is a mechanism very frequently encountered in English law contracts but which can also be misunderstood. It is important for a party committed to expert determination to understand what it actually means.

Jul-Sep 2017 issue

Walker Morris LLP