Litigation has been the normal first choice for many years but as times are changing doubts have been expressed as to whether litigation is always the most efficient and effective way of dealing with a dispute. Other forms of dispute resolution, which are commonly used today to resolve a dispute, are called ‘alternative’ dispute resolution (or ADR).
ADR is positively encouraged both at a pre-action stage and after litigation has commenced. The most commonly used ADR processes are negotiation, mediation and arbitration.
We aim to achieve the best possible outcome for our clients with a cost-effective basis and minimum time consumption. Thus, when appropriate we will seek to avoid lengthy and costly court actions, usually through negotiation in the first instance, or by encouraging our clients to use arbitration or mediation. Additionally, we encourage alternatives to full-scale litigation such as summary trials and interim remedies.
Negotiation is a relatively informal process involving the discussion of some or all of the issues in a case with a view to resolving them on agreed terms. It is a very flexible process and clients retain control of the outcome. When an agreement is reached, the terms need to be clarified and put into an enforceable form (i.e. a contract).
Mediation is a confidential, swift and cost-effective process that is not about winning or losing, or a court imposing a decision. A solution which is tailored to the real needs and interests of both parties will be reached. It involves a neutral third party (a mediator), who seeks to facilitate the resolution of a dispute. Parties are in ultimate control of the decision to settle and the terms of resolution. Mediation is, therefore, a form of neutrally assisted negotiation. If an agreement is reached, the parties will sign a written memorandum of agreement.
Arbitration is based on an agreement between the parties to refer a dispute to an impartial arbitrator for a decision that will be binding. Therefore, it can be seen as a private version of litigation that avoids unnecessary delay or expenses. The agreement to arbitrate may be made before (i.e. term or arbitration clause in a commercial contract) or after the relevant dispute has arisen.