The Most Frequently Asked Dispute Resolution Questions
Dispute Resolution law is yet another area that tends to bring up a lot of questions. This is understandable, as people can be naturally anxious to resolve any disputes they may be involved in with the utmost efficiency.
Questions arise in Dispute Resolution because, as with many other legal areas, it has its complexities. Luckily, we are here to make the entire process as smooth and simple as possible.
Below you will find a selection of the most frequently asked questions we get on Dispute Resolution, along with a detailed answer for each.
If you don’t find what you’re looking for here, feel free to get in touch by filling in the form to the right.
The Most Common Questions On Dispute Resolution Law
Damages for distress and inconvenience are not generally recoverable in the vast majority of commercial disputes. The main exception to this is in a narrow category of claims relating to travel and holiday, where they have been held by the courts to be recoverable but are generally very modest in amount. They can also be recovered in claims of nuisance, where there has been interference with a person’s ability to enjoy their property e.g. persistent unpleasant smells or excessive noise from a neighbouring business. Again, these tend to be very modest.
- The Civil Procedure Rules require parties of a dispute to exchange information about what is claimed, and what reason the other party gives for denying the claim, before embarking on court proceedings. The Practice Direction on Pre-Action Conduct requires the Claimant to write a letter of claim setting out the basis for the claim and to allow the Defendant a reasonable period to respond.
- If the parties are unable to agree terms of settlement, they may consider agreeing to use some form of alternative dispute resolution (ADR) to try to reach settlement. This can be informal (through a meeting or exchange of letters offering a compromise) or more structured, using a third party mediator or an expert to determine the dispute.
- If no agreement is reached on ADR, or it is pursued but does not result in settlement, the Claimant then issues court proceedings. Debt claims of up to £100,000 can be issued online through the government’s Money Claims Online portal.
- The Defendant must then file Defence setting out why they dispute the claim. After they do so, the claim will be transferred to the local county court of one of the parties, and the court will give directions to the parties on what steps they must take to prepare the claim for trial.
- The claim is then heard by a judge at a final hearing, when s/he decides whether the claim is successful or not, and who should pay the costs of the proceedings.
Alternative Dispute Resolution is the catch-all name given to a variety of different ways that parties can try to resolve a dispute, without having to proceed to trial and have a judge determine who is right and who is wrong.
The courts cannot compel parties to use ADR – but they do have powers to impose sanctions on parties whom it decides have unreasonably refused to mediate, usually involving preventing them from being able to recover some or even all of their legal costs.
It can be informal, with the parties agreeing to meet on a “without prejudice” (i.e. what is discussed is “off the record” and cannot be referred to in court) to see whether there is a basis for compromise, or just through exchanging letters setting out what they would be prepared to accept.
It can be more formal, with the most common form of ADR being mediation, where the parties agree to appoint an independent third party mediator whose job it is to try to assist the parties in reaching their own compromise. The mediator will not decide who is right and who is wrong – their job is to try to facilitate settlement by helping the parties find their own solution, rather than imposing one on them.
Another form of ADR is expert determination, usually more common in technical disputes where the parties might agree to appoint an independent expert in whatever field is in dispute to decide who is right and who is wrong, and for the expert to make a binding ruling.
There are different forms of dispute resolution:
- Litigation is the process of issuing proceedings in the High Court or County Court, with a view to eventually reaching a final hearing (“trial”) before a judge, who will determine whether the claimant succeeds in their claim or not, and which party should pay the legal costs incurred in going through the litigation process. The Civil Procedure Rules set out the rules which parties must follow in pursuing a claim through the courts.
- Arbitration follows a broadly similar path to litigation but rather than issuing proceedings in the court system, the parties agree to instruct an arbitrator to determine their dispute. They pay his fees jointly and they are free to agree whatever rules of procedure they may choose, although where they do not do so the Arbitration Act 1996 provides the default rules that will apply. In practice, arbitration these days follows a similar path to litigation in the steps required to prepare the claim prior to the final arbitration hearing.
- Mediation is a form of alternative dispute resolution where the parties agree to appoint an independent specialist mediator to help them try to reach a solution to their dispute. The mediator will not determine who is right and who is wrong – their job is to try assist in finding a solution that perhaps neither party is happy with, but both can live with. Mediators typically have a number of techniques that they can use to try to break an impasse and move the parties toward a settlement but, ultimately, they can only facilitate the parties reaching their own settlement, not determine the dispute in the same way that a judge or arbitrator would.