To save you a bit of time, let’s call it ADR for short. It’s probably best described as ‘assisted’ negotiations. It involves a few methods of resolving a dispute with the ultimate aim of reaching a settlement of some sort.
Due to the Civil Procedure Rules (let’s call them CPRs) introduced in 1998, you now have to consider ADR (that’s an Alternative Dispute Resolution) before taking a claim to court.
If you choose to refuse to consider an ADR service, including Mediation, you could suffer adverse cost consequences at trial, even if you win.
The risks of ADR
Unlike traditional Litigation and a court ruling which gives a legally binding result, the ADR process ordinarily produces a non-binding result, meaning it can often lead to an ineffective dispute resolution.
And there are other risks:
- The case may call for urgent immediate legal remedy and therefore there is little time to negotiate;
- Neither party can rely on legal or human rights in an ADR process;
- ADR providers do not have regulation or a consistent quality standard to follow. This could make it difficult for you or your advisers to choose a good service.
…there are some good things about ADR:
- It’s a quicker route than a lengthy court hearing;
- It’s a more financially viable measure than the traditional Litigation path for most people (and businesses);
- It has the potential to effectively preserve the relationship between you both whereas going to court could make a bad situation worse;
- It has the potential to come up with flexible solutions, that is, provide a wider range of outcomes whereas the court will be limited to finding on the facts;
- It’s a good way to minimise public exposure;
- It’s less stressful – the process is more informal and flexible in the way the matter is dealt, so, far less stressful than a full-blown court hearing;
- Everything said during an ADR process is said in confidence and without prejudice, so it cannot be used against you if the matter ends up in court.
The Civil Procedure Rules practice directions give four types of ADR. They are:
Discussion and negotiation
Your solicitor can discuss and negotiate your position with the other party’s solicitor to try and come to some form of settlement before formal litigation proceedings start, or continue through to initial stages of formal litigation.
If your solicitor is trying to negotiate whilst the matter proceeds, time isn’t wasted and costs can be kept to a minimum. Also, it is possible to get your solicitor to arrange an ‘around the table’ discussion (whether face-to-face or through video conferencing) with you and the person you’re in dispute with, accompanied by their solicitor. The meeting, discussions and negotiations can be guided by the solicitors to help you to come to a mutually agreed satisfactory settlement.
Let’s agree on something. When choosing which Alternative Dispute Resolution to use, you must think which will be cheaper, quicker and most importantly, will provide you with an outcome you’ll be happy with.
It’s important that you don’t simply choose the first, or the cheapest solicitor you can find. Choose one who will truly look after you and act in your best interests. A good place to start is by asking friends, colleagues and family for personal recommendations.
Settle on a lawyer who you think you’ll feel totally comfortable with. You will probably have to share personal details with them, so it’s good if you can be honest and open.
Most important of all, go and meet them face-to-face. Tell them your circumstances and listen to what they have to say. There are a good number of excellent lawyers specialising in ADR who will give you sound, realistic advice.
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic.