Expert research as a tool for dispute resolution

This method consists in carrying out expert research outside the court process.

In appeals to experts, a significant share is occupied by requests for conducting an expert study in a pre-trial order. And this is not surprising, since expert research is the only option for contacting an expert if the trial has not begun. Armed with the information provided as a result of the research, the customer can better build a strategy for further action on certain issues or problems that he has.

It should be noted that according to Instruction No. 53/5 of 08.10.1998 " On the appointment and conduct of forensic examinations and expert research and Scientific and methodological recommendations on the preparation and appointment of forensic examinations and expert research " (hereinafter - Instruction No. 53/5 ), expert research is carried out in the manner prescribed for the conduct of forensic examinations, incl. require specialized knowledge and the use of forensic techniques. The progress and results of such studies are set out in the conclusion of the expert study. The conclusion of the expert study is drawn up in structure and content as well as the conclusion of the expert.

The basis for conducting an expert study is a written statement (letter) of the customer (legal entity or individual) with a list of issues to be resolved, as well as objects provided for research.

So, let's consider the main advantages of contacting an expert for conducting an expert study.

Expert research is no less important than expert examination, under certain conditions:

• the need for special knowledge in a field other than law, without which it is impossible to establish the relevant circumstances;
• the need to obtain objective, complete and reasonable information about the circumstances requiring analysis;
• the need to obtain additional arguments for the possibility of forming a position and further actions to solve problems that have or may occur;
• the need to form a position of the party before the start of the trial (if the trial has not yet begun);
• desire to quickly resolve certain issues of the parties without opening court proceedings through mutual agreement (for example, through negotiations);
• desire of the parties to avoid unnecessary financial costs.

What do peer research and expertise have in common and how do they differ?

1. an expert study, in contrast to an expert examination, can be prepared outside the court process, that is, when the court proceedings have not yet begun;
2. during the trial, the expert research has the same evidentiary force as the expert examination;
3. the content and structure of the conclusion of the expert study and examination do not differ;
4. the expert's approach to the implementation of an expert study (namely, the provision of an objective, complete and reasonable opinion on the circumstances requiring analysis) is the same as for the formation of an expert examination for the court;
5. research is carried out only to order, and the examination, both by order of the party to the trial, and appointed by the court.

Negotiations in the pre-trial resolution of disputes

As follows from the above, one of the main goals of ordering an expert study is the ability to conduct a constructive dialogue between the parties in negotiations. In other words, the results of an expert study have a significant impact on the outcome of negotiations between the parties.

Negotiations can be called the process of discussing a specific problem in which the parties are involved in order to reach a joint solution. Pre-trial settlement of the dispute will help resolve controversial issues through agreements, without bringing the case to court.

Negotiating for the pre-trial resolution of disputes has certain advantages over the judicial form of protection of rights, namely:

• the ability of the parties to freely dispose of their rights (that is, the parties have a choice to present evidence, choose a mediator, make a petition, file a complaint, etc.);
• the possibility of independent control by the parties of the process and the result of negotiations;
• in comparison with court proceedings, the parties are deprived of unnecessary financial costs;
• The solution of cases is characterized by the simplicity of the procedure for considering the case, which in turn saves time for resolving contradictions.

Timely appeal to experts for the preparation of an expert study in a pre-trial order will allow you to qualitatively substantiate your position in the negotiations and, in most cases, avoid lengthy litigation.

Author: Marina Skrypnyk, Expert Research Service of Ukraine.