Dispute resolution can be a stressful and sensitive issue to tackle. A dispute, by its very nature, involves disagreement and potential conflict. This how-to guide is designed to explain, in as simple terms as possible, the different potential pathways and steps one can take in cases of dispute resolution. If you come out the other end of this piece with a greater understanding of the process, then our work here is done!
Before we get into specifics, here are a couple of key points to keep in mind:
- Whilst many assume that resolving disputes means going to court if an agreement cannot be reached between themselves, this is not in fact 100% true. There are alternative options.
- Current statistics show that over 90% of cases issued at court proceed to settle before reaching a trial.
What is Litigation?
Litigation is a term many are familiar with but may not really understand. Put simply, litigation is the process by which a claim is pursued through county court or the High Court, in accordance with the Civil Procedure Rules. This results in a trial, at which the judge will make a decision on whether the claimant has made out the claim in question.
It is a very costly process. The average cost of pursuing a claim to a contested trial is around five figures, often taking upwards of a year to be completed. The quality of the judges in these cases can vary, and the relevant parties involved have absolutely no control over who hears their case at trial. A fee must be paid as the claim is initially issued, and a further fee is then paid prior to the case going to trial. Typically, the losing party has to pay the other person’s legal costs.
All in all, it can be an expensive, unpredictable and painstaking process. Luckily for all involved, there are alternative routes to take.
What is ADR?
Over the past two decades, the courts have been actively encouraging parties involved in these disputes to consider forms of alternative resolution (ADR). This relates to both before issuing proceedings, as well as after court proceedings have begun. In fact, the court rules state that parties are now required to do so. This leads us directly into mediation…
What is Mediation?
The most common ADR option is Mediation. This involves the parties involved mutually agreeing to the joint appointment of a neutral specialist mediator. The neutral mediator then attempts to assist in bringing the dispute to a resolution through the process of negotiation between parties. The appointed mediator does not under any circumstances make a decision on who is right or wrong, but rather they help the parties to come to their own settlement.
There exists case law from the courts that has held parties responsible for unreasonably refusing mediation in a dispute, leading to said party being refused recovery of some or all of their legal costs – sometimes even if they win at trial. If there is good reason for mediation, it should definitely be considered.
Other Forms of ADR
Another ADR option is Expert Determination. This refers to a binding decision made by an expert in the area of dispute, appointed with the agreement of both parties, who both agree to be bound by the expert’s ultimate decision. Whilst some may shy away from a perceived lack of flexibility in this particular ADR, it also stands as an attractive option for those looking to cut down time spent on a dispute and get the matter dealt with.
Early Neutral Evaluation (ENE) is a form of ADR that has become increasingly popular in recent years. In the case of an ENE, a neutral and independent evaluator is appointed by both parties in order to make an assessment (or “evaluation”) of the merits in the cases of all parties involved. The evaluator is then to give an authoritative (but provisional) viewpoint on the issues central to the case. Along with this, he or she will provide an experienced evaluation of the strength of the evidence that will be used in an attempt to address the legal issues at hand. This evaluation may then go on to be utilised as the foundation for settlement negotiations.
Ultimately, all of these forms of ADRs may be considered by some to be smoother pathways to dispute resolution, less fraught with potentially very considerable legal costs and much more likely to produce settlement agreements in the long run – leading to less hassle going forwards.
Arbitration was initially considered to be a ‘cheaper and faster’ alternative to litigation. The central difference with arbitration is that parties appoint their own arbitrator, and they also have the complete freedom to decide on the procedural rules the arbitration will take place under. As is standard, the parties involved pay the arbitrator’s costs. Another significant advantage to this option is its confidentiality. Unlike litigation, which takes place in open court and in front of the public, arbitration is 100% confidential.
Whilst arbitration has come to resemble litigation more and more over the years (it is no longer necessarily cheaper or quicker), its confidential and flexible nature still make it an attractive prospect for certain business sectors.
By this point, you should have a much clearer idea of your options, and what each of them really mean. In cases of disputes where it is possible, ADR is almost always the better option. Exactly which one depends on the nature of the case and your own personal circumstances.
If you are looking for legal advice regarding a dispute resolution issue, feel free to contact one of our experts on 01782 652300 or fill in our form here. We will get back to you as soon as possible.