Dispute Resolution
Alternative Dispute Resolution and How It May Be Helpful
Due to a change in the court process, the courts are more readily emphasising parties using Alternative Dispute Resolution (ADR) to try and resolve a matter, without court involvement.
About ADR
Alternative Dispute Resolution and How It May Be Helpful
This can have benefits such as expediting resolution of matters, keeping costs to a minimum and reducing hostility amongst parties.
The courts now expect parties to consider ADR before issuing proceedings, and failure to do so may result in adverse cost consequences in civil matters or delays in family proceedings.
This article outlines the main forms of ADR used in the UK and briefly describes how each operates.
We will be able to advise you as to what alternatives to court litigation are appropriate in your case, as well as provide a greater breakdown as to what this entails and the positives and negatives.
ADR methods covered
- Negotiation
- Mediation
- Arbitration
- Early Neutral Evaluation (ENE)
ADR Methods
Negotiation
Negotiation remains the starting point for most disputes. Parties—often through their solicitors—attempt to reach an agreement without engaging formal processes.
Other forms of negotiation can include a ’round table’ meeting where all parties sit with representation in one room, or in separate rooms to try and reach an agreement.
Within a family law setting, solicitors frequently negotiate parenting arrangements, financial settlements and separation agreements, either directly or by way of correspondence.
Within a civil litigation setting, solicitors frequently negotiate damages due to a party or concessions on claims against the other.
We can advise you whether negotiation is suitable in your case. In some cases, negotiation is not suitable if both parties will not concede on their position. If this is the case, we can advise on alternative ADR options.
Key features of negotiation
- Entirely voluntary and highly flexible — can take place however parties prefer, and on any timescale. This does however mean that some parties could 'walk away' from negotiation at any time, meaning parties would not be further forward.
- Parties retain full control of the process and can set their own deadlines.
- Often the quickest and least expensive option compared to court.
ADR Methods
Mediation
Mediation involves an independent, accredited mediator who helps the parties explore solutions and work towards a mutually acceptable agreement. This can take place with, or without legal representation, depending on the parties’ wishes as well as the issues in their case.
Mediation is usually suitable for all parties, including those who may have experienced domestic abuse from the other, as safeguarding provisions can be put in place. This could include separate rooms, with the mediator going back and forth, legal representation attending so the other party cannot apply undue pressure, or mediation taking place via video, telephone, or email correspondence.
In civil litigation, the courts strongly encourage mediation. Judges may adjourn proceedings to allow parties to mediate and can impose costs sanctions for unreasonable refusal. Mediation is beneficial in civil disputes as it is significantly cheaper than court preparation and attendance, as well as quicker.
In family law, mediation is prominent and encouraged by the Family Procedure Rules. The court now has powers to order parties to attend a form of ADR before the matter proceeds to court, so it is a good idea for parties to attempt a form of ADR before issuing proceedings if at all possible. We can help advise you as to suitable options for ADR, having in mind your case facts.
Attendance at a Mediation Information and Assessment Meeting (MIAM) is generally required before issuing certain family applications, unless an exemption applies.
Mediation is confidential and without prejudice meaning that the discussions that take place cannot be repeated in court litigation (unless with permission of the court, or regarding costs).
However, you must bear in mind that a mediator facilitates but does not impose an outcome. Therefore, any agreement made in mediation is not binding without it being formalised by a consent order or agreement. Mediators are also unable to advise either party about the case and whether what they are agreeing or proposing is a ‘good deal’ or a ‘bad deal’ so it is worth discussing any proposals with a solicitor, and they can properly advise you.
Benefits of mediation
- Significantly cheaper than court proceedings
- Quicker than the court process
- Reduces animosity between parties
- Confidential and without prejudice
- Suitable even in cases involving domestic abuse, with safeguarding provisions
- MIAM attendance generally required before issuing certain family applications
ADR Methods
Arbitration
Arbitration is a formal ADR mechanism where a neutral arbitrator makes a binding decision after considering evidence and submissions. Both parties to a case instruct an ‘arbitrator’ to hear each parties’ position, as if they were a Judge, and the arbitrator will provide their determination based on that evidence.
This is often used in civil litigation as this process is quicker than the court process. In addition, if their case is properly prepared for arbitration, one can be satisfied that the outcome reached would be akin with what the court would make.
Arbitration is increasingly used in family law for financial matters and certain child law issues.
Key features of arbitration
- Private, flexible and usually quicker than litigation as one can instruct an arbitrator quicker than a court would list the hearings.
- Provides a binding decision enforceable through the courts.
- Parties have the ability to select an arbitrator with specific expertise, relevant to their case.
ADR Methods
Early Neutral Evaluation (ENE)
In ENE, an independent evaluator—often a barrister or retired judge—gives a non-binding assessment of the merits of each party’s case. This is similar to Arbitration, however the decision is not binding.
This ADR option is beneficial as it allows parties to present their case to an experienced neutral third party, as if they were the Judge, and can hear the determination that would have been given. This allows parties to then engage in negotiations following this determination having received an objective view.
This furthers negotiations towards a settlement but can also assist parties with ascertaining the strengths and weaknesses of their case, to better prepare their case in the event they wished to proceed to court. This is beneficial in both civil litigation as well as family law disputes.
Key features of ENE
- Helps narrow issues and promote settlement having received an objective experienced evaluator's view.
- The process and determination is confidential and without prejudice, meaning it cannot be referred to in future court proceedings (unless with permission of the court, or regarding costs).
- Particularly useful in complex or high-value cases whereby both parties are far apart in their positions, and they need help reducing the gap towards settlement.
- Allows parties to hear the strengths and weaknesses of their case to further prepare their case in the event they proceeded to court.
Our Advice
Choosing the Right ADR Method in the UK
Selecting the most appropriate ADR process depends on the nature of the dispute, the relationship between the parties, the need for confidentiality, and whether a binding decision is required. Both civil courts and family courts encourage ADR as a means of resolving disputes more constructively and efficiently.
Our firm supports clients at every stage—from initial negotiation through to representation in mediation, arbitration or other ADR processes—and can advise on the method best suited to your objectives.
Factors that influence the choice of ADR
- Nature of the dispute
- Relationship between the parties
- Need for confidentiality
- Whether a binding decision is required
- Cost and time considerations
Our Support
How Our Solicitors Can Help
Our solicitors will support you through every stage of the process. We have extensive expertise in litigation and can advise you how best to resolve your matter.
From your first contact with our firm, you will be met with support, dedication to your case, and transparency regarding how your case will be handled and progressed and this will continue until the end of your case.
Throughout your case, we will
- Listen to your concerns and intentions.
- Advise you on the merit of your case and your options, clearly.
- Discuss alternative methods to court resolution and advance any options you select.
- Prepare your case for ADR, including, if necessary, instructing the best advocate or third party for the ADR.
- Provide quality and quick-turnaround communication with you.
- Advise you on any additional documentation or preparation to best put your case forward.
- Assist with negotiation and correspondence with the other party or their representation.
- Keep you updated throughout your case as to the latest position, as well as suggested next steps to best prepare your case.
- Provide you with a transparent breakdown of the costs of your options so you can make an informed decision.
- Draft consent orders and/or agreements if you reach an agreement.
Our Firm
Why Choose Martin Cray & Co?
If you need assistance with a legal matter, contact us today to arrange a confidential consultation. You can use our contact form or get in touch by phone.
Call us on 01273 673 226 or email [email protected]. We’re just a phone call away and ready to hear from you.
We pride ourselves on
- A compassionate yet focused approach
- Clear, realistic advice on prospects of success
- Strong negotiation skills to reach an agreement where possible
- Experienced court representation
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