Most clients these days have heard about alternative dispute resolution and will be familiar with what this means however, when in the heat of a legal dispute, these alternatives to the expense of Court proceedings can often be forgotten. It is worth noting that some disputes cannot be resolved without the Court’s help.  However, for those disputes where both parties are able to come together to try and resolve the dispute, this can often be a very economic way of resolving the dispute.

There are a range of ADR options available to parties in a dispute. Some of these are summarised below:

Negotiation

This is perhaps the most common and straightforward form of ADR. Negotiation is a process whereby the parties and their legal advisors seek to resolve the dispute by reaching an agreement either through written correspondence or a meeting between all concerned. Negotiations are usually on a “without prejudice” basis which means that any offers made cannot be shared with the Judge.

Negotiation and settlement are often more cost effective than Court proceedings and should always be attempted before issuing a claim in an attempt to try and resolve the same. Offers can be made in this way as any litigation progresses.

Mediation

Mediation is a series of meetings with a third party, a Mediator, to attempt to negotiate a settlement. A Mediator is a specially trained professional who is jointly appointed by the parties to assist them in resolving the dispute. The Mediator’s task is to attempt to bring the parties to a settlement. The Mediator is impartial and is a facilitator. The cost of mediation is shared between the parties. Mediation is a very useful method of ADR provided all parties enter it in the spirit of compromise and are willing to settle.

Arbitration

This is a method of ADR where the decision/agreement reached by the Arbitrator is binding upon the parties. It is more expensive than mediation however is usually less than Court proceedings. The process is overseen by an Arbitrator who generally has a professional background in the same field as the dispute. The Arbitrator acts in a similar capacity to a Judge to determine the issues in dispute and make a final decision based on the evidence presented by the parties. This is often very useful for constructions disputes or disputes in a specialise field as the Arbitrator has experience in that field so is able to reach a conclusion that is considered and fair.

Adjudication

When disputes arise in relation to an ongoing contract, it is important that the parties are able to quickly resolve a dispute as they still have an ongoing contractual relationship. With this in mind, Adjudication is a process whereby the parties have often built this into the contract prior to the dispute arising. The dispute will therefore be referred to a third party Adjudicator for a swift decision. This is preferable to terminating the contract and commencing lengthy and costly Court action. Adjudication is generally a very swift process usually starting and concluding in 28 days.

If you are involved in a dispute, then discuss this with our Team today and see how we can help you.

Court assisted settlement

In some disputes, in the Business and Property Courts, the Court may order that an Early Neutral Evaluation Hearing (ENE Hearing) takes place. This is similar to a trial in that preparation of a core bundle of relevant documents and statements is prepared for the parties to refer the Judge to at the hearing. The Judge will hear the evidence and provide a provisional decision on what could potentially be ordered if the matter proceeds to a Trial.

Whilst the decision is not binding, it provides the parties with an idea as to what the Trial Judge may find at the final hearing.

This can often prompt useful settlement discussions as the parties are then mindful of the overall outcome and the evidence in the case. This can be a useful exercise in focusing the mind of the parties perhaps if they have become entrenched in their position. This process can allow the parties to move forward with appropriate advice from their legal advisors.

This process is not cheap as Counsel will usually be required for the hearing for both parties, as well as the parties’ Solicitors. There is a lot of preparation work needed to get the case ready for the hearing. However, the costs are usually well spent as this process can resolve the matter with the parties working together during the hearing and afterwards.

If you are involved in a dispute relating to a Will or Estate, or a Property matter, our Disputes and Litigation Team can discuss your options with you to try and resolve the matter.