Specialist Litigation Solicitors
At the end of 2018 the Civil Justice Council (CJC) issued their Final Report as to ADR, or Alternative Dispute Resolution. The Report concluded that there were a number of related challenges, including the awareness of ADR both in the general public, and in the legal profession. Has the position changed since the end of 2018?
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What is Alternative Dispute Resolution?
ADR is a broad term, and includes a number of techniques or options with the purpose of assisting parties in a dispute to reach a settlement. The Courts are very clear that litigation is the last resort, and that there is an expectation that ADR is used before commencing any proceedings. However, at present, there is no compulsion to mediate, although a failure to do so can result in sanctions being imposed by the Courts, at a later date.
The types of ADR include the following:
- Negotiation and “round table” meetings
- Mediation
- Conciliations and ombudsmen
- Early Neutral Evaluation
- Arbitration
Of these options, negotiation and round table meetings, along with mediation are the most commonly used.
How you can tell we are real Alternative Dispute Resolution Specialists
Here at Bonallack & Bishop, we have been committed to mediation and other forms of ADR for many years. And that practical experience can make all the difference in achieving a satisfactory settlement of your dispute, with the minimum of cost, delay and distress.
What is mediation?
Mediation is a confidential, private and flexible process in which the parties to a dispute appoint a neutral and trained independent mediator to assist with the negotiated settlement.
One of the main providers of Mediators, CEDR, describes the process as:
“A flexible process conducted confidentially in which a neutral person actively assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution”.
A mediation takes place on a “without prejudice” basis. In other words, if a settlement is not reached in a mediation then everything discussed is confidential and cannot be referred to in legal proceedings.
When does mediation take place?
A mediation can take place at any stage before or during the course of court proceedings. If necessary, it can be carried out in parallel with court litigation.
Do I have to take part in mediation?
No, mediation is voluntary. However, a refusal to mediate can result in the Court imposing sanctions if the dispute is litigated. Such sanctions can include costs.
How does mediation actually work?
As to the process, once the parties have agreed to participate in a mediation, a mediator is appointed usually by reference to service providers which train and appoint mediators to resolve disputes. Following the appointment of the mediator the parties will prepare Position Statements setting out the relevant information, and the issues, for the mediator. The Position Statements are only exchanged with the other party by prior agreement. The parties will then agree and fix the date for the mediation, which can take place at either a neutral venue or hosted by one of the Solicitors instructed in the dispute.
The mediation day will usually commence with the mediator meeting each party and their lawyer, if they have one, in separate rooms to ensure that the attendees are ready to participate, and that they fully understand the process.
The mediator will then bring all the parties together in one room. The mediator will give a brief overview of the process and confirm that the mediation is taking place on a confidential basis. The parties are then encouraged to give their opening statements before the parties return to their private rooms.
The mediator will then move between the rooms and assist with the development of possible terms of settlement. These discussions are entirely confidential, and nothing can be disclosed to the other party without their express consent. The mediator will assist the parties in reaching a settlement of the dispute. In reaching any settlement the mediator may act as “devil’s advocate” in testing the strength of as case but will never take sides or impose a settlement. If the parties can agree then a binding settlement agreement in writing is prepared, and signed by the parties.
Does mediation work?
In summary, mediation is a quick and cost effective process, and the majority of cases referred to mediation do settle. In our experience, mediation can be highly successful. The process is private and confidential. Mediation can take place at any stage. As a process, it allows the parties to understand better the other side’s underlying interests, and to be creative in reaching a settlement.
Mediation is a flexible process managed by a trained and independent neutral, the Mediator, who assists the parties to reach terms of settlement. The process is confidential and private.
Why isn’t Alternative Dispute Resolution used more often?
That’s a really good question. There is still a widespread view that ADR is under-used, and too little known. Further, the public awareness of ADR is extremely limited.
As to businesses and commerce, there is more understanding as to the benefit of ADR, and the early settlement of disputes between businesses. It is now more common to include in commercial contracts dispute resolution terms, which set out a “tiered” process, including ADR, to be followed before any proceedings may be commenced.
In general, however, ADR is currently being used in a disjointed, and insufficiently integrated fashion.
In summary, when civil disputes arise there are tried and tested alternatives to litigation. A recent Court survey found that 68% of all litigants contacted said they would have preferred to avoid Court proceedings if at all possible.
ADR is widely available, and should be encouraged at the outset of any dispute: the use of ADR should, in no way, be seen as a sign of weakness. It should become an integral part of the dispute resolution process.
Are there any circumstances when ADR might not be appropriate?
Yes – sadly not all cases are suitable for resolution by ADR. In particular the following circumstances may not be appropriate:
• when there is a limited time period action has to be taken. If there is a rapidly approaching time limitation – a formal claim may be necessary – at least to start with
• when one of the parties is simply not prepared to negotiate, or the differences between the two parties are so huge that there is no realistic chance of a successful negotiation at any stage
• when one of the parties is pursuing a claim for the purpose of making trouble
