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 attorney and must rely upon the deposition and/or courtroom testimony of the opposing expert without being able to ask their own questions. The use of alternate dispute resolution – such as mediation, arbitration, and negotiation – not only can reduce the cost of traditional business litigation, but also can help eliminate the uncertainty that comes from leaving the resolution of the dispute up to the Courts (judge or jury).
Examples of disputes that are prime candidates for alternate dispute resolution includes:
• Business contract disputes
• Shareholder/partner disputes
• Employee termination disputes
• Insurance claims
• Royalty payment disputes
• Patent/trademark disputes
• Business merger and acquisition
• Local disputes,
• Global disputes,
How the role of the forensic accounting expert differ in Alternate Dispute Resolution (ADR)
• First, the forensic accounting expert can be jointly retained by both parties as opposed to by just one party in traditional business litigation.
• Next, because of the joint retention of the forensic accounting expert, both parties are more cooperative and better able to share all the necessary information needed by the forensic accounting expert. Thus, there is also usually less of a need to make assumptions.
• Finally, the expert witness report can be openly reviewed with both parties. Because this is a joint retention, the forensic accounting expert can be more open and informative with both parties and stand ready to fully answer either party’s questions. This helps to eliminate confusion and lack of understanding regarding the damage calculation or business valuation and the forensic accounting expert’s process.
• Additionally, the cost for the forensic accounting expert will be less, because only one expert is retained instead of two, and because the cost of depositions and/or courtroom testimony can be eliminated.
The Role of the Forensic Accountant In Mediation
A forensic accountant has a number of possible roles to play, which are discussed below.
Expert Accountant acting as a Mediator.
Accountants may play a role in a dispute by acting as a mediator. For example, disputes involving business valuations, application of technical accounting standards or which require business acumen and experience in a particular industry or sector may benefit from having a mediator with the requisite expertise in these areas.
The Forensic Accountant’s role in calculating damages and attending the Mediation.
In complex commercial disputes requiring an expert opinion on the quantum of damages, for example in a case whereby one party may have suffered a loss of profits following a breach of contract by another party, a forensic accountant may be retained as an independent expert to provide an independent assessment of the amount in dispute. In such a case the forensic accountant may be requested to prepare an expert report, attend a meeting of experts with an opposing expert, or advise their client on a range of their potential losses depending on a number of factors or assumptions. In mediation, the forensic accountant can provide a similar role, assisting a mediator in dealing with and understanding complex financial issues.
Forensic accountant role to serve as appointed receiver or monitor
Forensic accountant role as Consulting or testifying expert
Forensic accountant role as impartial neutral with specialized expertise
Forensic accountant role as Advisor to party during mediation
The philosophy behind Alternative Dispute Resolution is to ensure that parties involve resolve their dispute without anyone of them feel aggrieved. ADR is a good mechanism to resolve disputes among individual and organisation both local and international level. The presenter believes and suggests to us that all avenues available within ADR be explored fully before approaching the court. Even now that so many cases are queuing in the court without definite date of conclusion, is an issue that need immediate action by the government.
Ojeaburu Friday Msc, ACA, PhD (in view)
Ojeaburu, Friday (ACA, BSc, MSc, PhD) is a seasoned Chartered Accountant with over 14 years accounting experience. He has experience in corporate accounting, financial accounting, financial management, financial audit, public sector accounting, environmental accounting, entrepreneurial accounting, Cv writing, business plan writing, online coaching, research writing etc.