Disputes by their very nature can be a stressful issue to tackle and often this is compounded by the fact that many people do not fully understand the different options open to them to resolve a dispute when a disagreement and potential conflict arises. In this article we look at the main types of dispute resolution and what they might mean for you.
What is Alternative dispute resolution?
Over the last 20 years or so, the UK legal system has been actively driving disputing parties down the route of alternative dispute resolution (ADR) as opposed to litigation and in fact, courts will often take a dim view of parties who try bypassing this process, with court rules stating that parties are now required to take part in some form of ADR prior to bringing a case to court. Additionally, many contracts include provisions for mediation or arbitration to resolve a dispute and so it will be vital that you review any contract you have in place before deciding on the steps you take. Seeking the advice of a commercial law or civil disputes solicitor will be advisable, so that they can assess the most appropriate form of action depending on your circumstances and review any contents of a contract that is in place.
What are the other forms of dispute resolution?
The two most common types of ADR are mediation and arbitration.
What is Mediation?
Mediation in its basic form is the process by which the disputing parties meet in one place where an independent third party tries to help disputants reach a mutually acceptable resolution of the dispute. The parties will need to comply with a set of rules regarding conduct and if an agreement is reached, to be bound by that agreement. The mediator cannot impose a solution as in mediation it is for the disputing parties to agree a resolution. In mediation, it is advisable to draft a settlement or resolution agreement to be signed by both parties, which will set out the agreed final terms, to avoid any further conflicts at a future date.
What is Arbitration?
Arbitration is where an independent third party serves as a judge and considers the facts of the case, and is responsible for resolving the dispute, and unlike in mediation, the arbitrator can make a decision that is legally binding and enforceable by the courts. Disputing parties can negotiate virtually any aspect of the arbitration process; including whether legal representatives will be present at the time, and which forms of evidence will be used. Depending on the complexity of the case, arbitration can include more than one arbitrator; especially if multiple issues arise that require a wider expertise to deliver the decision. Different to litigation, which takes place in front of the public in an open court, arbitration is a private and confidential process and importantly, the parties can manage the process themselves without a court imposing rules, deadlines and penalties.
Whilst it is more flexible than litigation, ensuring you have sought the guidance and representation of a solicitor will be advisable as this is a formal legal process that can involve other crucial factors, such as the disclosure of various documents and evidence, all of which, will impact on the outcome of the case.
What happens if the ADR process fails or is not suitable?
As the name suggests, Alternative Dispute Resolution (ADR) is the process of resolving a dispute without the involvement of litigation (taking the case to court). However, if these alternative routes do not resolve the issue then it may be necessary to go down the more traditional and formal route of litigation.
What is Litigation?
Whilst it maybe a term most are familiar with, the process is not always totally understood, but in its most basic form, litigation is the formal legal process which utilises the full legal system to pursue a claim through county court or the high court, in accordance with the civil procedure rules which you and your solicitor will need to follow. The courts will often dictate the path the case proceeds and will apply a set of deadlines for the parties to take action and ultimately prepare the case for a final hearing. Unlike mediation and arbitration, the legal proceedings in a litigation case are not private, they are however legally binding once a judgement has been concluded (subject to appeals) so the parties must comply with the outcome.
Cost and time can be one of the biggest differing factors in litigation proceedings in comparison to other forms of dispute resolution. This is down to the time and individuals involved, such as solicitors, barristers, courts, experts and judges. Therefore, litigation can become an extremely costly and long, drawn-out process.
It is not uncommon for litigation to be resolved before a final hearing, where the legal representatives will aim for a settlement agreement during the pre-trial period of discovery and preparation. However, many disputes cannot be resolved pre-court, so the final outcome will be a full hearing where a judge will determine the outcome of a case.
As mentioned above, the courts will be unimpressed with parties who do not attempt to resolve a dispute on a more informal basis, with cost penalties being imposed in certain circumstances, so it is vital that the right legal advice is sought before deciding on which dispute resolution process you should take.
Dispute Resolution Solicitors
This is a complex area of law with a set of rules and case law which must be complied with and which requires expert advice and guidance. At Larcomes, we have a team of specialist litigation and dispute resolution solicitors who, regardless of the complexity of your dispute, have the knowledge and expertise to help. We will explain all the options available to you and ensure you are aware of all the costs involved and how to resolve the dispute in the most appropriate way, guiding you through every step of the dispute resolution and litigation process.
- Find out more about our civil disputes services
- Find out more about our commercial disputes services
To speak with one of our specialist dispute resolution team please give us a call on 023 9244 8100 or make an online enquiry
Please note that this article is not intended as legal or professional advice, it is for general guidance only and updates to the law may have changed since it was published.