1. Overall
The provisions of the standards on the alternative models for resolving disputes among themselves are absolutely identical.
The alternative dispute resolution models described are, in addition to the parties' attempts to reach an amicable solution themselves, the use of an external mediator outside the judicial apparatus, the use of an expert for the latter to reach a decision and, finally, court proceedings.
We will not delve deeply into the individual provisions, but will preferably try to highlight points that speak in favour (or disfavour) of the various options. The purpose is to provide the individual with opportunities to be able to make informed choices.
If a contractual relationship has become so soured that the choice of dispute resolution model has become issue, we will assume that the parties have engaged lawyers.
2. Rule mirror
3. Amicable solution
Both standards contain a call for the parties to “as far as is reasonable” resolve the dispute “amicably”, see NS 8411 paragraph 37 and NS 8412 paragraph 42.
There is no doubt that this should be the parties' preferred way of resolving disagreement.
First of all, this has a cost side in that the use of external forces entails an increase in the use of resources. On the one hand, external resources will have to pay for their assistance and partly internal forces will have to spend time putting external forces into the matter. Nor can we ignore the fact that the use of external forces is something that in itself contributes to a heightened level of conflict.
The fact that the chapter of the Standard Rules on Disputes raises an invitation to the parties to seek an amicable solution is therefore well founded.
If the parties fail to reach an amicable solution, the standard contracts propose two alternative models for resolving the dispute outside the courtroom.
One option is mediation and the other is the use of an expert to make a decision.
4th. Mediation
Many people probably know that courts conduct extensive mediation activities after a case has been brought before the courts in the form of a writ and a reply.
A large number of disputes are also resolved through such judicial mediation.
The form of mediation described in the standard contracts, on the other hand, is not judicial mediation, but what we call extrajudicial mediation.
In recent years, the Bar Association and the Juristenes Utbildningscentrum have prepared a very good teaching offer for those who want to become certified mediators, and those who take this course must pass a practical exam.
The provisions of NS 8411 paragraph 38 and NS 8412 paragraph 43 do not say anything about what kind of background or competence the person appointed by the parties as mediator should have.
We would strongly recommend that in this case you choose a mediator who has completed such a course as we have mentioned here and that the person concerned is certified.
We have written an article on extrajudicial mediation that can hopefully benefit from, and it exists here.
Beyond this, both standards contain a relatively detailed account of how the parties should proceed with the use of mediator.
NS 8411 paragraph 38 and NS 8412 paragraph 43 both contain five sub-items which appear in the rule mirror, and these regulate 1)choice of mediator, 2)the mediation procedure, (3)termination of mediation, 4th)prohibition of evidence and confidentiality, and 5)how the mediation costs are to be distributed.
Often the parties will be represented by a lawyer when one has come this far and the provisions are enlightening enough. Therefore, we do not go into more detail on the individual provisions.
However, we would like to point out that if the parties manage to agree on a certified extrajudicial mediator, the latter will be able to assist the parties in such a way that they do not necessarily have to spend resources on their own lawyers. A certified out-of-court mediator will also be able to apply the procedural rules set out in the standard contracts and will be able to use this dispute resolution model as a low-threshold offer.
Before moving on to the expert option, we will also highlight something very central to extrajudicial mediation. When conducting a mediation, the parties will have full control over the outcome of the case. The mediator's focus will be to assist the parties to find solutions themselves with which they can live on, and not three specific solutions down over the head of one of the parties.
5. Expert decision
The provisions on expert decision can be found in NS 8411 paragraph 39 and NS 8412 paragraph 44.
These rules may remind some of the rules found in the standards of contract law and which are called “adjudication decisions”.
A key and fundamental difference between extrajudicial mediation and expert decision is that the parties have full control over everything that happens in a mediation, and the mediation is oral. The parties are present, one can agree on both partial requirements and how the mediation will be arranged in the further course, and the parties — together with the mediator — have the opportunity to create a good atmosphere. In other words, the parties have, and get, full ownership of everything that happens.
If the parties choose to use an expert to obtain an expert decision, one chooses a completely different model for resolving the dispute among themselves.
In short, one then chooses a dispute resolution model that has strong similarities with the preparation for a trial characterized by written submissions that each of the parties must prepare, and respond to.
From the point of view of experience, such a procedure can be both costly and, not least, conflict-inducing.
Unlike a judicial process in which the parties meet to explain themselves and, in particular, to bring witnesses, the expert decision is essentially based on what the parties have submitted by written submissions with accompanying evidence (documents). The expert himself may decide that the parties should be called to a so-called “dispute meeting” in order to give the parties the opportunity “to explain their positions in more detail”, but only the expert can ask questions. We refer in this regard to NS 8411 paragraph 39.2 point d and NS 8412 paragraph 44.2 letter d.
When the expert has finished his assessment, he or she makes a decision, and it follows from the last paragraph of NS 8411 paragraph 39.3 and NS 8412 paragraph 44.3 that this is “indicative” unless otherwise agreed.
In the contracts of contract law, the rule is that the adjudication decision becomes legally binding on the parties unless one party brings the case before the courts within six months of the date of the decision. The prerequisite is that the arbitral award relates to one or more of the matters explicitly mentioned in the relevant provisions.
This means that even if an expert decision has been obtained in its favour, it is not legally binding.
6. More about court proceedings
Court proceedings are the traditional and statutory way we have for resolving conflicts.
Most often, the parties experience court proceedings as demanding in terms of costs as well as in other ways. If the parties have a commercial relationship that one really wants to continue, court proceedings are usually not constructive. In such cases, it is far better to reach an amicable solution or to use a certified mediator to, if possible, find a solution through the mediation institute.
We have also written an article on traditional dispute resolution that can be read here.
7. Agreed extension of limitation period
In NS 8411 paragraph 41 and NS 8412 paragraph 45 there is a provision informing the parties that the limitation period may be extended by agreement.
In fact, there is a limitation period of three years from the moment when the party first had a right to fulfill it.
Unfortunately, it is relatively common for parties to miss the limitation period — either because one does not know the rules or because one misunderstands them.
In professional relationships, there are also many who believe that the rules on complaints and on obsolescence coincide.
However, that is not the case and we have written an article about these rules that exist here.
If you are approaching the expiration of the limitation period, care must be taken to cancel it.
The statute of limitations specifies very specific ways that must be followed in order for the deadline to be properly canceled.
The main rule is that anyone who has to cancel the limitation period goes to legal action — either have to file a settlement complaint or a subpoena.
An alternative to this is that the parties agree that the limitation period should be extended.
Such an agreement must be made in writing, and it must be concluded before the original limitation period has expired.
Namely, one cannot revive a limitation period that has expired through an agreement or judgment.
Since significant value may be lost if a claim is withdrawn, we recommend that the parties use a lawyer or other knowledgeable person to ensure that an agreement to extend the limitation period is made properly.
