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Even if you have a strong case, success cannot be guaranteed. If you are successful, and subject to the nature of any settlement terms which might come to be agreed, it is likely that you will not recover all of the costs you spend in dealing with a claim. In most cases, Court action should be a last resort, particularly if you are a private individual who will personally bear the costs.
We pride ourselves on providing our clients with creative, flexible and practical alternative ways of resolving their disputes, wherever possible, in order to avoid the costs, delays and uncertainties of Court action, and to achieve the best possible outcome.
These alternatives are collectively known as Alternative Dispute Resolution (‘ADR’). They are ways for parties to resolve their disputes without relying on the Courts.
We can advise and assist you in a wide range of legal matters that can be resolved by alternative means, including by the following processes: –
We are also able to offer our services by being instructed to act as the Mediator for a dispute.
If you would like to discuss a situation with our dispute resolution solicitors, or enquire about our mediation services, then please contact our specialist lawyers on 020 7935 3522 or by clicking on the ‘How can we help?’ icon at the top of this page.
Negotiation is the most informal and flexible ADR process. It involves parties attempting to reach agreement on matters in dispute directly or through solicitors. Negotiation is a typical form of ADR used by private individuals involved in a legal dispute.
Mediation is a process where the parties appoint a neutral third-party (the Mediator) to identify the key issues in dispute and attempt to bring them to an agreed resolution. It is encouraged by the courts, and can be quicker and cheaper.
If a resolution is reached at mediation, it will be put into a formal agreement and signed by the parties. Once signed it is legally binding on the parties. If one party refuses to abide by the agreement, the other party can enforce it.
If a resolution cannot be reached, anything discussed at the mediation cannot be referred to in any court proceedings.
Mediation is also a typical form of ADR used by individuals involved in a legal dispute.
Arbitration is a process where the parties appoint an independent third-party (the Arbitrator) to act as a Judge and determine the dispute. The decision of the Arbitrator is binding on the parties. The parties cannot refer the matter to the court appealing against the Arbitrator’s decision unless he has reached that decision having made a manifest error of fact or law.
Adjudication is a quick and speedy process whereby a dispute arising under a contract is, referred to a third-party Adjudicator for determination.
Adjudication is typically used in construction disputes where the parties can expect a decision within a number of weeks. However, the parties will always have the option of pursuing a dispute through the court or other means if they do not agree with the Adjudicator’s decision.
ADR has a number of advantages, including the following:
If ADR does not result in settlement, any process undertaken can result in wasted time and costs for the parties. However, even if ADR does not resolve the dispute, it should test the merits of each party’s case and narrow the issues between the parties. In any event, ADR should allow the parties the opportunity to fully and frankly air their different perspectives.
Even if ADR does not resolve the dispute as part of the process, it is common for ADR to increase the chances of settlement being reached at a later stage before trial.
A party may be contractually obliged to use an ADR process. However, even if they are not, the court rules actively and robustly encourage it.
Unless the particular circumstances of a dispute make it inappropriate to do so, the court rules require parties to take appropriate steps to resolve their dispute and, in particular, to consider the use of an appropriate form of ADR in order to do so.
Parties should also bear in mind the potential adverse costs consequences of unreasonably refusing to undertake ADR. The Court has a broad discretion as to whether the costs of one party should be paid by another, the amount of those costs and when they are to be paid. When the court decides to make a costs order, the court will have regard to the conduct of the parties, both before and during the dispute. This includes the extent to which they have considered appropriate forms of ADR.
Where a party unreasonably refuses to use ADR or fails to consider the use of ADR, the court may punish that party when making a costs order. Undertaking ADR at an early stage can reduce the prospect of an adverse costs order being imposed by the court at a later stage.
Refusing to use ADR because you do not believe it will be successful and proceeding with litigation should be very carefully considered. There is a risk that the court will find that proceeding with litigation on the basis that ADR has no reasonable prospect of success is not a good enough reason to refuse to engage in ADR and the party making that decision may be subject to an adverse costs order.
A dispute may be wholly unsuited to ADR in limited but important circumstances; for example, where a party requires urgent injunctive relief.