The role of a forensic accountants in Alternative Dispute Resolution (ADR)

Some forensic accountants choose to specialise in Alternative Dispute Resolution (ADR) due to their familiarity with both finances and the legal system. Business litigation can be a very expensive and costly. Generally, opposing attorneys will fight vigorously for their clients. When forensic accountants are engaged as EXPERT WITNESSES in business litigation, such fighting can drive up the cost of the expert witnesses and drive down the understanding of the forensic accountant’s work and, therefore, the client’s satisfaction with the forensic accountant. In a typical business litigation scenario, the opposing attorneys may fight against providing information which the forensic accountant has requested in order to calculate damages or to perform a business valuation. Depending on the amount of rancor between the parties and level of antagonistic determination between the attorneys. There are times he may have to perform the damage calculation or business valuation without all the relevant information he believes is necessary. In the absence of such information, the forensic accountant may have to make reasonable assumptions regarding the missing information. If there are differing assumptions by each side’s expert witness, significant differences in damage calculation or business valuation amounts may result. In such situations, the parties often may expend significant time and incur significant costs in using these forensic accounting experts. Especially when there are significant differences of opinion between the two expert witnesses, the experts’ fees and attorney fees can be even higher. Both parties also may come away with confusion and misunderstanding regarding how the relevant damage amount or business’s value was determined. This is because they may only speak with the expert retained by their...

What is Alternative Dispute Resolution (ADR), Modes and Processes of Alternative Dispute Resolution (ADR).

Dispute resolution is the process of resolving a dispute between parties. Dispute resolution is also often referred to as “conflict resolution.” There are a number of processes that can be used to resolve conflicts, claims, and disputes. Therefore, ADR is the procedure for settling disputes without litigation, such as arbitration, mediation, or negotiation. It is also called external dispute resolution (EDR). ADR procedures are usually less costly and more expeditious. They are increasingly being utilized in disputes that would otherwise result in litigation, including high-profile labour disputes, divorce actions, and personal injury claims. One of the primary reasons parties may prefer ADR proceedings is that, unlike adversarial litigation, ADR procedures are often collaborative and allow the parties to understand each other’s positions. ADR also allows the parties to come up with more creative solutions that a court may not be legally allowed to impose. So the philosophy behind ADR is that it offers the parties an opportunity to avoid risks and reduces the likelihood of an unfavorable outcome. It gives the parties in the dispute the opportunity to consider the risks involved in litigation. Dispute Resolution Processes Generally, however, most dispute resolution processes are classified as facilitative, advisory or determinative or as ‘mixed’ or ‘blended’, and this article focuses on the more facilitative forms: (a) Facilitative processes involve a third party, usually with no advisory or determinative role, providing assistance in managing the process of dispute resolution. These processes include mediation and facilitation. (b) Advisory processes involve a third party who investigates the dispute and provides advice on the facts and possible outcomes. These procedures include investigation, case appraisal...

Game theory as a theoretical foundation of alternative dispute resolution

The mathematical theory of games was invented by John von Neumann and Oskar Morgenstern (1944). ‘Game theory is the science of rational decision making in interactive situations’ (Dixit & Skeath, 1999). ‘Game theory can be defined as the study of mathematical models of conflict and cooperation between intelligent rational-decision makers.’(Myerson,1991).   Both these definitions focus on the interactive component between the parties. At the heart there are the twin issues of conflict and cooperation. There is the assumption that these decision makers are rational and have specific objectives in mind which in a dispute is to reach a settlement. Game theory, a mathematical model used in a variety of dispute contexts starts with the premise that the participants, while not knowing fully the position of the other party, are rational and want to achieve the best possible outcomes.  Levine (2019) stated despite the intensity of a dispute, both sides ultimately want to achieve the best possible outcome. Each party has to assume that the other party is rational even though he may not know exactly what the other party wants. It is in this situation that the third party negotiator’s role becomes increasingly important to help move the parties along in the process of information exchange until they come closer to a common understanding as to what the other person wants. Game theory provides a new language to think of human behaviour and of parties who are in conflict. Negotiation can be used in the family setting to alter the expectations and preferences of the parties. In game theory, one of the dominant models which has been used to...
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