Satisfaction levels with the courts in England and Wales are regrettably lower now than at many times in the past. This is not due to the quality of the decisions of our esteemed judges or the law that they uphold. It is generally because of the long time taken for a matter to reach trial and, in spite of efforts to improve case management, the cost of litigating.

It is unsurprising that other forms of dispute resolution are becoming increasingly popular. Adjudication is a common-sense way of resolving construction disputes. Mediation and negotiation are very effective means of resolving or at least narrowing issues between parties in commercial disputes. Expert determination (“ED”) is an alternative that suits certain disputes and is an area in which MDS Advisory has significant first-hand experience.

In common with other ways to obtain a decision on a matter in dispute, an Expert Determiner will be appointed by agreement between disputing parties and will then follow a set procedure. The Expert Determiner’s role is to act neutrally in finally determining (making an award on) an issue between the parties. ED does, however, have its own very specific features.

Most importantly, the agreement between the parties and the determiner will not generally require the determiner to give reasons for their decision.

Expert Determiners are not generally lawyers: they are experts in their field who are trained and experienced in conducting an ED process and reaching a decision. This often forces the parties to focus on evidence and substantive issues since there is, in theory, far less scope for legal argument.

In many cases, although there will be the opportunity for a hearing, the matter will be decided on the papers with a strong emphasis on the expert evidence presented by each party.
ED is increasingly seen as the method for resolution of complex IT and technical disputes where the issue between the parties is essentially factual: did the product work? Who was responsible for the error? What was the quantum of the loss resulting from the error?

There are a number of bodies in the UK supporting and promoting ED as a means of dispute resolution. At MDS Advisory, we have worked closely with the Academy of Experts who offer a detailed set of rules that are often adopted for determinations and who can assist with appointment and selection of experts from their panel. Other such bodies promoting EDs include the Royal Institution of Chartered Surveyors and the Centre for Effective Dispute Resolution.