Chapter 16

Preparing for battle — getting ready for the hearing

There are essentially eight stages in preparing a matter for determination, be it by court, an arbitrator or a tribunal.

The overarching principle is to ensure that every party has an opportunity to fully and completely put its case as it wishes. An ordered and structured preparation for hearing ensures to the fullest extent possible that there is no trial by ambush where a party presents to a counterparty at the end of the process a large amount of information that would have changed the counterparty’s view of the case or caused it to take other and different steps in its own interest.

The key is to ensure an orderly, rational and timely preparation of the case. This means that not only should everyone have the opportunity to put their case, but that the counterparties should be fully and clearly aware of the position of the other parties to the dispute.

Clarity is the key. It is important that everyone knows what everyone else is saying about the dispute and the result they think is fair, appropriate and within the bounds of the law.

Figure 16.1 (overleaf) sets out the general stages of the dispute.

Figure 16.1: general stages of a dispute

It is important that a party engaged in the dispute has some familiarity with the language of the court, tribunal or arbitration in which they are involved. The law is infused with jargon and technical terms. Many of these technical terms are merely names. They are labels for what are otherwise reasonably straightforward and simple concepts. However, the use of these jargon terms by lawyers can tend to intimidate and alienate the non-lawyer.

The glossary at the back of this book simply defines a number of terms relevant to contract negotiation and disputes. Although by no means comprehensive, it provides a snapshot of the kinds of language that a party should or may become familiar with during the course of a dispute.