The Courts are increasingly busy dealing with a backlog of pre-Lockdown cases and also an influx in new claims being issued. This is resulting in long delays in applications being processed and hearings being listed. Parties involved in a dispute should therefore consider whether matters could be more easily resolved by way of Alternative Dispute Resolution (ADR).

What is Alternative Dispute Resolution?

ADR refers to methods of resolving disputes which do not involve Court proceedings. ADR is frequently used by parties because it can often save time and costs, as well as giving parties more flexibility, choice and control when compared to the traditional Court route.

Common forms of ADR include the following:

  1. Mediation
  2. Arbitration
  3. Expert Determination
  4. Adjudication
  5. Early Neutral Evaluation

Why is ADR so important?

The Court has published various “Pre-Action Protocols” which it requires parties to follow prior to issuing proceedings. This includes trying to take steps to resolve the dispute without involving the Court.

The Court has the power to make an adverse costs order against any party it considers to have (i) failed to comply with the relevant Pre-Action Protocol and/ or (ii) unreasonably refused or ignored an offer to engage in ADR. It can therefore be a very risky strategy to dismiss suggestions of Alternative Dispute Resolution without careful consideration.

What has the government said about Alternative Dispute Resolution?

The Cabinet Office has recently issued guidance in respect of responsible contractual behaviour in the performance and enforcement of contracts impacted by the Coronavirus emergency. In particular they have recommended that parties seek to resolve any emerging contractual issues responsibly during the Coronavirus pandemic – through negotiation, mediation or other alternative or fast-track dispute resolution – before issuing Court proceedings.

Our ADR series

We will be publishing a series of articles which will consider the potential benefits (and disadvantages) of various ADR including mediation, arbitration and expert determination.