Simply put, alternative dispute resolution (ADR) covers all the ways individuals or businesses can resolve legal disputes without going to court. For many reasons, including reduced cost, privacy and efficiency ADR is often a better way to engage with your opponent than through risky and expensive litigation. That’s why at Nath Solicitors in London we often encourage it – although we will always examine the particular nature of the issues facing clients before deciding not to issue court proceedings.
Here we look at some of the most common forms of ADR.
Ways To Resolve A Legal Dispute Using ADR
Sometimes you will have no choice but to engage in ADR. A court may insist upon it or there may be a contractual requirement to resolve disputes using a particular form of ADR. Usually however ADR won’t be mandatory. Set out below are the main forms of ADR used in England and Wales:
- Negotiation – Informal discussion and negotiation between the parties, usually involving solicitors, is one of the most common ways to resolve disputes. It’s best used as soon as a dispute arises or before one becomes likely. Early negotiation means the position of each side won’t be too entrenched and there may well be a genuine willingness to amicably resolve the issues at stake before the situation becomes acrimonious.
- Adjudication – This form of ADR generally applies to building disputes but it can also be employed if parties have specified its use in the contract under which the dispute has arisen. Adjudication is relatively formal, involving the appointment of an agreed adjudicator who is required to come to a decision within 28 days. Because of the tight schedule, adjudication is helpful in resolving specific disputes that have arisen in the course of a wider building or similar project. It enables the project as a whole to continue while the separate dispute is resolved. Decisions of the adjudicator are binding although it’s possible to have an arbitrator or court re examine the issues at a later stage –usually when the main project has been completed. Adjudication is cheaper generally than litigation and parties can ask the adjudicator to decide who pays the costs (or they can agree to divide the costs between themselves).
- Mediation – Here the parties employ an independent mediator to hear their case. It’s an informal process where the mediator interacts separately with each side in an attempt to find areas of agreement and potential ways to solve the dispute. It’s a voluntary exercise but courts can force a party that refuses unreasonably to mediate to pay court costs.
- Early Neutral Evaluation – This process lends itself to cases where resolution of a highly technical area of dispute would effectively decide the whole case. Parties appoint an independent evaluator (often a retired judge) with specific expertise. The evaluator makes an assessment of what the likely outcome of the case would be if it went to court. The evaluation is confidential – it can’t be used for example in future court proceedings. But it has the effect of showing the parties the reality of their situation and shedding light on the strength or weakness of their respective positi This then enables the to review their approach to resolving the dispute.
- Arbitration – Arbitration is the form of ADR that most closely resembles full-scale litigation. There is a hearing before an arbitrator that results in a legal determination of the issues. This ‘arbitration award’ is to all intents and purposes binding on the parties (unlike most other ADR decisions). Decisions of arbitrators are enforceable internationally in the 180 signatory countries of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Usually arbitration will be administered under the auspices of one of the recognised commercial arbitration bodies such as the London Court of International Arbitration (LCIA).
ADR enables parties to control their case more closely than if they choose litigation. And the flexibility of the different ADR processes means parties can tackle areas of dispute as formally or as informally as they wish.
Contact our Litigation and Dispute Lawyers London
ADR won’t be appropriate in every case. But its flexibility, private nature and cost effectiveness aren’t factors to be readily overlooked. Added to that the increased difficulty in obtaining trial dates within a reasonable timeframe mean we are more and more regularly involved in ADR on behalf of clients.
Contact director Shubha Nath at Nath Solicitors on 0203 983 8278 or contact the firm online
