Have you considered the opportunities to train as a provider of Alternative Dispute Resolution?
Today many businesses are demanding and seeking alternatives to the adversarial processes of dispute resolution which are certainly expensive and where, too often, the process itself militates against resolution.
Legal, technical and cost issues have come to dominate disputes – driving the nirvana of resolution further away, with some cases taking years to be resolved.
In a search for better solutions, many are turning to different forms of Alternative Dispute Resolution (ADR) as a preferred mechanism. What could this mean for accountants and their clients?
A growing market
CEDR – one of the leading ADR providers – regularly surveys the market and in its most recent report noted civil and commercial mediation was growing at a rate of 10% per annum. Organisations are also taking control of ADR processes. This includes contractual clauses which manage a dispute by setting out a managerial escalation process or alternatively a process of appointment of a mediator or arbitrator.
There is also judicial support for ADR, driven by factors including 1) a desire to manage cases to resolution (not trial) and 2) resolution via ADR saves on limited course resources. This is evident in case law such as the July 2019 case of Ohpenand the August 2019 Court of Appeal case Lomax, which concluded that a party could not object to a Judicial Early Neutral Evaluation of the merits of a case.
Opportunities for accountants
There is a growing client demand for ADR around not only commercial disputes but also other areas of civil law, most notably family and work-place – where ADR and primarily mediation is more solidly entrenched as part of the dispute resolution process.
Don’t assume that ADR is only for lawyers – there are a number of opportunities for the accountancy profession.
When advising a client, consider whether an ADR clause should be included in a commercial contract and – where a client is in dispute already – whether any contractual ADR processes have been followed. Contractual ADR, and indeed early referral to mediation in the absence of contractual terms, will in the case of a difficult dispute often lead to a quicker and less costly resolution for the client.
Where a dispute arises from a different interpretation of a technical issue, parties should consider whether that issue can be resolved by an ‘expert determination’.
There will be many such specialist issues which fall within the technical competence and skillset of ACCA members. Similarly these same skills would apply in those instances where parties are seeking an ‘early neutral evaluation’ of a dispute and would be especially valuable before proceedings are issued.
More broadly the commercial perspective gained by advising clients on business issues and the ability to bring to bear the ‘art of accountancy’ to offer solutions will lend itself to the role of mediator: the neutral intermediary jointly appointed by the parties in dispute to resolve the issues that divide them.
Space in the market
There is undoubtedly a space in this growing market for accountancy-led ADR, particularly at the lower end (typically described as disputes under £100k by value). This is not a regulated marketplace and if you feel acquiring such skills could strengthen the services you can provide to clients – or other accountants – then do consider taking the first steps towards training as a mediator.
For more information about mediation (and details of training organisations) visit:
Terry is a solicitor who spent 30 years in private practice for one of the leading litigation businesses in the UK. After roles as managing and senior partner he retrained as a mediator. Terry is a CEDR panel mediator, a Civil Mediation Council registered mediator and is currently also on the organising Committee of the National Mediation Awards 2020.
Lomax v Lomax is an interesting case as there has been considerable discussion whether (i) ADR processes are effective where they are mandatory and (ii) whether compulsion is in breach of a party's right to a trial.
 Judicial Early Neutral Evaluation or “JENE” is a non-binding indication by a judge of the strengths and weaknesses and likely outcome of a case. It will, of necessity, take place only once proceedings are issued. Commentators therefore query whether “Early” is an accurate definition.