Should I try Alternative Dispute Resolution before going to court?

There are several reasons as to why you should try some form of Alternative Dispute Resolution (ADR) before taking a claim to court. The court process is extremely expensive, risky, stressful, and time-consuming.

Also, as the proceedings are usually carried out in public and adjudicated by a judge, you would not be afforded any privacy or control over the outcome. One of the benefits of ADR is that you and the other party to a dispute can try and find a solution that works for both of you, and its non-confrontational nature means, you are more likely to retain your relationship. This is extremely helpful if you are neighbours or in business together.

In the UK, there is an expectation by the courts that parties try ADR and seek to settle their dispute before coming to trial. Proceedings can also be stayed (paused) to facilitate the parties’ use of the ADR. Failure to do this can result in certain consequences such as an adverse costs order (or simply put, costs penalty) against the party that unreasonably refuses to engage in it. ?It ought to be noted that ADR is not confined to a certain area of law, as anyone can participate in it. There are different types of ADR available for use, and this article will consider some of them.

Negotiation

Negotiation is the most informal type of ADR where you and/or your solicitor can try and narrow the issues and/or reach a settlement.

There is no third party in this process, and you can negotiate via written correspondence, telephone, or in person.

Any such deliberations are ‘Without Prejudice’ and cannot be disclosed before the court. It is important that parties commence negotiation as soon as possible, to either limit the issues or come to a resolution, if possible, to save on costs.

Legateca has partnered with experienced lawyers that can assist with negotiating a settlement on your behalf. Please click here now and book in a consultation.

Conciliation

Conciliation is where the parties instruct a conciliator, a neutral third-party, to guide them towards an amicable outcome. The process is informal, confidential, and voluntary. As with negotiation, all discussions are Without Prejudice, meaning they cannot be disclosed to the court, if it fails and proceedings are initiated.

The conciliator assesses each party’s position, sets out their opinion as to the prospects of success, and suggests potential settlement options. The conciliator is not able to impose their opinion upon the parties, and it is entirely a matter for the parties as to whether they accept the settlement options suggested. If an agreement has been reached, the parties would need to set it out in writing and sign it for it to be legally binding.

Conciliation is mostly used to resolve employment disputes, although it can be used for a wide range of matters. Acas have their own conciliatory process which parties must first engage in before taking a claim to the Employment Tribunal.

Conciliation can also be used by employers as part of their disciplinary or grievance procedure.

Legateca work with a specialist team of lawyers, including employment lawyers, that can assist. Simply head onto the website and book a consultation today!

Mediation

Mediation is one of the most common types of ADR. An independent third-party mediator plays the role of a ‘referee’, who is appointed by the parties to assist with reaching a settlement. The main difference between a mediator and a conciliator is that a mediator cannot impose their opinions or suggest settlement options, instead the parties decide the compromise amongst themselves.

The process involves the mediator listening to both parties separately, negotiating for them, and helping them move towards a resolution. If a solution is reached, then an agreement is put together at the end for them to sign or a Tomlin Order can be drawn, if proceedings have already started. This is a court order which comes in two parts. On the face of it, the order confirms that the proceedings are stayed (paused indefinitely), and that the parties can apply if the second part, the schedule, which contains the agreement and is confidential, needs to be enforced. This is if one of the parties has failed to keep their end of the bargain. As with all the other ADR processes, mediation is also confidential. In fact, parties are expected to sign a confidentiality agreement before the day.

There are certain areas of law where mediation is mandatory, such as family law, if the dispute relates to children or finances. Parents/ parties would be expected to attend a Mediation Information and Assessment Meeting (MIAM).

There are certain exceptions to this however, such as, if the relationship involves domestic abuse, if the matter is urgent and there is an imminent risk of harm to the child, or if mediation has been attempted in the past four months, as some examples.

Legateca has a wide range of mediators that can assist. Checkout their profiles and book a consultation today!

There are other forms of ADR available to parties such as arbitration, expert determination, and private and public sector ombudsman can also assist. Some examples of private sector ombudsman include Ofgem , The Motor Ombudsman , The Rail Ombudsman , Financial Ombudsman Service , The Property Ombudsman , The Furniture & Home Improvement Ombudsman , The Pensions Ombudsman , and Legal Ombudsman .

Whereas the public sector ombudsman include Parliamentary and Health Service, Local Government and Social Care Ombudsman, Housing Ombudsman, Prison and Probation Ombudsman, and European Ombudsman.

About Legateca and how we can help?

Legateca is a simple, budget-friendly, and convenient online platform providing a seamless experience on your legal journey. Here you will get information based upon precise legislative rulings and judicial precedents, have access to a wider choice of verified Lawyers and Mediators, and be able to connect to expert legal advisory. You can compare profiles based on their fees, expertise, experiences, cases, and more. Once satisfied, you can directly book a remote video consultation with them. Moreover, you can also provide them with your documents beforehand to make your first meeting more productive.

We are proudly collaborating with Law Simplified , an award-winning online legal publishing company in the UK which simplifies legal updates and principles, and delivers them to the public in articles, videos, podcasts, and mini-updates. These are published on their?website, their social media accounts including?YouTube?and?Tiktok, and all major podcasting platforms such as?Google podcasts,?Apple Podcasts, and?Spotify.