The future of dispute resolution - alternatives to the usual legal process

Disputes about horses and money are all too common in the racing world. The legal process is not a good way of settling disputes it can be costly, lengthy, antagonistic and uncertain. Therefore other ways of settling disputes have been sought. Walking away from a problem may work but it all too often returns twofold. Arbitration To solve a problem by simple negotiation (i.e., with no intermediaries and no legal processes) is a blessing but unfortunately such cases are rare as people often become entrenched in a dispute protecting a “point of principle.” In the USA and increasingly in Europe the costs of legal proceedings have become astronomical. The most common form of legally binding dispute resolution is litigation through the courts before a judge who must be seen as being disinterested and unbiased and where each party is given a fair opportunity to: 1. Present his/her case. 2. To know the opposing case, and 3. To answer it. An arbitrator can be chosen by both parties to act as the judge in their dispute. The traditional legal process has no procedure that allows the parties in a dispute to discuss their respective cases with frankness and openness without giving away their bargaining positions. The unsatisfactory factors of the traditional legal processes have led to the development of alternative dispute resolution the aim of which is “a process for finding a solution that the parties can live with.” Negotiation is the commonest way that disputes are settled. It is only when direct negotiation breaks down that some other means of reaching a settlement is required. Mediation Mediation is a form of Alternative Dispute Resolution (ADR) where the parties select an independent third party, or neutral who will assist the parties to reach an acceptable solution. The mediator discusses the problem with both parties together and also separately in private sessions called “caucuses”. These private caucuses enable the mediator to use his or her imaginative problem solving skills to encourage frank and open discussions for both parties. The mediator is there to guide the parties to their own solutions. The mediator is not there to make judgements but to act as an honest broker rather than a judge. Mediation may be brought to the attention of the disputants by solicitors, by a colleague who has experience of mediation as a method of alternative dispute resolution or by the courts. There are court mediation schemes in many larger cities and an increasing number of civil cases brought to the courts are directed back for mediation. It should be emphasised that over 80% of mediations are successful, that the cost of mediation is dramatically less than litigation and also that the proceedings are confidential. It should be noted that parties directed to mediation by the courts, who decline the mediation process, may be charged costs by the court even if they win their case. The process of mediation is that the mediator meets and introduces himself to the two parties. Each party nominates a spokesperson who can be the disputant, the insurer, or friend or a solicitor or barrister. The mediator will then ask each party to outline their side of the dispute, the so-called “initial opening statement”. All parties are present and the mediator listens to both statements. The mediator then separates the two parties and speaks to them both individually. These private sessions are called caucuses. The first caucus tends to be for a relatively short time but then the caucus can be for variable lengths of time in order for the mediator to ascertain the facts, explore both parties evidence and opinions. The mediator explains that he will not reveal any information to the other party unless he is given specific permission to do so. The mediator is not a judge but merely acts as a catalyst exploring alternative methods by which the dispute might be solved. These mediation hearings are “without prejudice”. This means that in the event of the dispute not being solved then the evidence and discussions cannot be mentioned at any subsequent legal trials. It should be emphasised that the vast majority off mediations (>80%) result in a successful outcome and both parties will find common ground and the mediator produces a short conclusive statement which both parties sign. What subjects of disputes can be mediated? For trainer disputes can arise from numerous quarters from the initial purchase of horses, syndicate disputes, partnership disagreements, personal injuries, employment disputes, farriery problems, problems with builders over stables, all-weather gallops etc. The list is endless. Throughout Europe racehorse trainers face the same problems. The marvellous “old-fashioned owners” who even when faced with the worst of luck would murmur - “Oh well, that’s racing!” - are all too rare these days and in the age of modern syndicates there is often a “closet barrister” or a syndicate member who cannot accept that “accidents happen” and who are determined to prove that every piece of bad luck must be someone’s fault and that somebody “definitely needs pursuing”. In my experience, modern trainers may be accused of “ducking and weaving” but they are merely trying to avoid the left hook that often comes from the most unexpected quarter. As they search the world for a horse that may be a “hidden gem” with some “form” which might enable it to compete with the best there are inherent risks. As an equine veterinary surgeon I have been dispatched to far-flung corners of the globe to “vet” such horses and on the whole such entrepreneurial owners have benefited greatly. Galileo, Tulipa and Cobbett have arrived from Warsaw racetrack and acquitted themselves with great aplomb, but for every success there have been some disappointments and the buying and selling of racehorses is often fraught with the possibilities for a dispute. For the “Veterinary Defence Society” (VDS) the purchase of horses represents the biggest single area of problems for the equine veterinary surgeon and the VDS does a very fine job in looking after the interests of veterinary surgeons in this very complicated area. One thing is certain and that is that in the life of a modern European trainer disputes will and do occur from the relatively minor – “How come I was fined by the Jockey Club because the vaccination in the passport was a few days out, and the horse couldn’t then race for a further twenty one days while this problem was rectified?” To the high-profile and well-documented dispute between Coolmore and Sir Alex Ferguson over the ownership of Rock Of Gibraltar. Mediation can take place even when a court date has been set. The costs of mediation are likely to be a fraction of the costs of a court case. In the unusual event of mediation not reaching a satisfactory conclusion then a court case can always occur. The mediation process is one in which a compromise agreement is made i.e., it is not a win/lose situation but a solution that both parties can live with. Some contact details: The Veterinary Mediation Association – www.veterinarymediation.com