Gone are the days where litigation was the main way of resolving disputes. These days, contentious lawyers are less often referred to as “litigators” and more often referred to as “dispute resolution lawyers” with some family lawyers now being referred to as “collaborative lawyers”. Essentially, this represents the shift away from the all out warfare of litigation and reflects the fact that contentious lawyers are now involved long before a dispute has even arisen to try and prevent it from occurring in the first place.
When that fails, one of the first things to consider is whether or not the matter can be resolved without having to go to Court and that involves looking at Alternative Dispute Resolution – otherwise known as ADR. Further, there is no reason not to consider ADR even if it has failed once, or even if there has been a hearing (or hearings) and the matter is proceeding on an appeal.
It should not necessarily be seen as a sign of weakness. It can show resourcefulness and a degree of professionalism, ensuring that progress is made to work towards more productive matters going forwards. Further, these options can occur alongside litigation and so need not operate in a linear fashion, causing delay if time is in issue.
There are various forms and all should be considered in any matter where there is a whiff of a dispute.
Negotiation
Although obvious, communication is often the way in which disputes are resolved. Simply having communication with the other party or parties can often bring any misapprehension to a head. Further, negotiation should not be limited to correspondence. Telephone conferences, round table meetings and the like are all good ways of trying to see past the dispute towards a solution. We have no doubt all experienced the situation whereby we have received a text or email from someone who comes across as very cold, blunt and rooted yet are much the opposite when spoken to, whether face to face or over the phone. As such, this should never be underestimated as a means by which to resolve a matter.
Mediation
This is commonly offered in most civil dispute resolution processes. Sometimes it is even offered by the Courts or Tribunals themselves but it can be arranged privately in any event. A Mediator is an independent third party whose job is not to decide who is right and wrong, but to listen to the parties’ concerns, weigh that in the balance of what is important to them and then consider that information overall in the context of the dispute to assist the parties to see whether or not a solution can be achieved. To that end, they can be seen as a broker of settlement. Entrusted with information from both sides on a confidential basis, the Mediator is possessed with the knowledge of what each side is willing to settle for or at least where they are prepared to move. The mediator can then put forward proposals of settlement or direct the parties down avenues of settlement which may hopefully bridge the gap to a resolution.
Mediation often leads to what is known as a “win, win” solution whereby both parties agree to settle. Therefore, mediation can help maintain relations going forwards which can be very important, particularly if the dispute has arisen in a relationship that the parties wish to maintain going forward.
Expert Determination
This is different to mediation in that a third party expert, usually well experienced in the subject matter of the dispute, is appointed by the parties to reach a decision about how the dispute should be overcome, both parties agreeing to be bound by the expert’s decision. This is an “eggs in one basket” approach and therefore can often be met with concern by clients but it does lead to a quick procedure, usually with minimal costs and with a degree of certainty. This can often be useful where there are disputes over such matters as e.g. rent reviews or compensation that should be payable under the terms of a contract.
Early Neutral Evaluation
This is a more modern form of ADR and does not necessarily bring about resolution by itself unless the parties agree to be bond by the decision/ evaluation. This is where the parties agree to appoint a third party expert to consider the dispute and evidence available and then given an indication of what their decision would be if they were the decision maker in the Court or Tribunal. This can give an early steer to the parties involved, particularly where both parties are adamant that they are correct.
The decision may or may not be binding and it may merely be provided for guidance but can essentially amount to a second, independent opinion and help one or both of the entrenched parties to review their position. Where it is non binding, this can then lead to further settlement discussions or possibly even the end of the dispute. It can be particularly effective where the expert appointed is well respected in that area of law or possibly even sits as a decision maker in a Court or Tribunal.
Adjudication and Arbitration
Although technically distinct, these are alternative dispute resolution procedures to that of the Court and Tribunal. They can often be quicker and more specialised, allowing the parties a greater degree of flexibility as to how the dispute will be resolved.
They are often used in technical matters such as construction disputes where the Adjudicators and Arbitrators are experts in that area. Though the successful party will usually obtain their costs against the unsuccessful party, it can mean a swifter and more cost effective resolution than proceeding through the Courts. It may also allow for a greater degree of confidentiality if that is a necessary requirement of the parties which luxury is not necessarily afforded by the Court or Tribunal.
Other Types
There are many other types and variations on the above and new methods to resolve disputes are being put forward all the time. This is often linked to trying to resolve disputes more quickly and cost effectively.
It is possible also to use ADR procedures together e.g. for expert determination on certain issues with adjudication for the remainder. It is for the parties to decide.
Further, many commercial contracts now include clauses specifically designed to cover the situation when disagreement arises and so ADR is a key factor to include where there is an ongoing relationship where differences of opinion are likely to arise.