Alternative Dispute Resolution (ADR)
It isn’t always appropriate to consider court action. Our team will advise you on the best course of action to help meet your objectives. As experts in dispute resolution we will consider the various alternative methods of resolving your dispute – which may not require litigation.
Why Use ADR?
Considering ADR is an important aspect of modern litigation. All litigation in the Courts of England & Wales is governed by the Civil Procedure Rules. These rules require parties involved in litigation to consider ADR both before and during court proceedings. Any party refusing to do so without good reason may find that even if they go on to win the case, the Court is unwilling to order the losing party to pay their costs.
We positively encourage participation in Alternative Dispute Resolution (ADR) as early as realistically possible. However, we would always recommend that you don’t attend ADR until you have received advice on the strengths and weaknesses of your case so that you know how strong your bargaining position is. Knowing when to fold your hand or when to press home an advantage is crucial to achieving the outcome that you are looking for.
What are the types of ADR?
Offers and negotiation
Often a method used historically where cases have been settled ‘on the steps of the Court’. However, there is no reason why this shouldn’t work at the outset of a dispute – once you have received legal advice as to the strengths and weaknesses of your case and the value of your claim or the claim being made against you.
Without Prejudice meetings
Also known as ‘round table meetings’, these give parties in a dispute the opportunity to make their point face to face with their opponent – and listen to their opponent do likewise. This can often create greater understanding on both sides, which in turn can lead to the compromises needed to resolve the dispute.
This is the most sophisticated form of ADR which involves utilising the services of a professional mediator (or using the free Court service for cases in the Small Claims Track, where cases are valued at less than £10,000).
The parties will assemble in separate rooms and the mediator will shuttle between them, raising points made by the parties, questioning legal arguments and putting forward offers and counter offers. The mediator’s role is to try to find common ground between parties and a skilful mediator dealing with parties willing to compromise, can often achieve the desired outcome. Although this is not an inexpensive method of ADR, settlement can often be achieved at a fraction of the cost of a trial at Court.
Arbitration and Adjudication
These are statutory forms of ADR. Arbitration clauses can be written in contracts and in the case of adjudication relating to the Housing Grants, Construction and Regeneration Act 1996, this is available as of right to parties to construction contracts.
Each format has its own rules and regulations relating to conduct and procedure which must be followed. As a result it would be more accurate to describe these as alternatives to Court proceedings rather than ADR as, although they can be quicker to arrive at a conclusion than Court proceedings, the complexity and often the cost can be on a similar scale to Court proceedings.