Traditionally, disputes were resolved in the courtroom with a judge coming to a decision based on the legal arguments raised by each party. However, there is nothing like an extended (and expensive) piece of litigation to polarise the parties, so finding other ways to resolve a dispute can help preserve business relationships. This can be especially important for food businesses, which often have relationships (for example, with a key supplier or under a franchise agreement) that are essential to allow them to continue trading.
As a dispute resolution lawyer, one of the first things to consider is ‘how can we help you resolve this?’ and the courtroom is often considered the last resort. Although no two cases are the same and there is no one-size-fits-all solution. Tom Bourne, senior associate at Cripps Pemberton Greenish, considers some of the options
Without prejudice negotiations
Sometimes the aggrieved party will think they have a good claim, but through sensible dialogue they can be persuaded not to pursue their case. More commonly, however, both sides to a dispute will have to accept some wrongdoing (or at least some risk) and without prejudice negotiations can help to resolve matters.
If you are thinking of making a settlement offer, then it is important to do so in the correct way so that you do not compromise your legal position if the offer is not accepted. It is also worth considering how and when an offer should be made to ensure the best chance of a deal being done.
Where the parties cannot come to an agreement between themselves, a specialist mediator can be appointed to try and facilitate a resolution. Mediators have been specifically trained in dispute resolution and they are adept at trying to find common ground between the parties, or a collective way forward. For example, part of the deal that is struck could be to enter into a new agreement to avoid similar issues arising in the future or for the settlement to be paid out of future trading.
A judge is not always the best person to resolve a dispute, especially where the issues are technical in nature. With this in mind, the parties to a dispute can agree to appoint an independent third party to come to a determination or prepare a joint report setting out their findings. For example, if a franchise agreement requires an account of profits to be given, it is likely to be significantly quicker and cheaper to appoint an independent auditor to resolve a dispute than have matters decided by a judge.
When a dispute arises, consider if there are ways to resolve matters and avoid lengthy (and expensive) litigation. Resolving matters quickly can help preserve business relationships and instructing a dispute resolution lawyer can help you weigh up your options.