Comment

Elizabeth Tout and Sophie Nappert

No doubt lawyers in private practice will find much to disagree with.

We have been asked to comment and are pleased to offer the following thoughts, based on our practice in litigation, arbitration and ADR in energy disputes:

1. It is a widely acknowledged fact that clients who use dispute resolution services are increasingly sophisticated. This is particularly the case for the users of arbitration in the energy field. They are, in our experience, unimpressed by the knee-jerk reaction of "suing the bastards", given the considerable financial implications of legal proceedings. Exceptions do, of course, exist, particularly where personal or corporate "pride" has been dented.
2. The strategy and stance that is adopted in a dispute is dictated by the needs of the client and the purpose that they wish to achieve. In this strategic analysis, mediation is considered but it may not always be the right option at the initial stages. This is particularly the case with the energy players, who are skilled negotiators. Often the conciliatory process has been exhausted without significant result by the time they come to their external lawyers for advice, and they may consider that little progress would be achieved by mediation at that stage. They may prefer to consider mediation again at a later stage, after proceedings have been issued and both sides have a better understanding of where the formal proceedings may end up.
3. At the right moment, and with the parties in the right frame of mind, mediation does work more quickly, and more cheaply, than arbitration or litigation.