Ask the Expert

The benefits of Alternative Dispute Resolution in all types of dispute

David Low Partner, Dispute Resolution team

As a Partner in our busy Dispute Resolution team, I represent clients in a broad range of cases including disagreements over land and property, breaches of commercial contracts and director disputes.

Whilst many of our clients will be familiar with the idea of Alternative Dispute Resolution (ADR) in the context of family matters, I am often met with looks of surprise and some uncertainty when I suggest this to clients in relation to different, often more commercial, types of dispute. And yet, now more than ever, we should be encouraging all of our clients to embrace ADR as a quicker, cheaper and more commercially practical way to bring any dispute to an end.

The 4 most common methods of ADR

There are a number of alternative paths that should be explored before heading to the courtroom to resolve a dispute. The most common of these are:

1.Mediation Mediation involves the appointment of an independent specialist who works closely with the parties to try and facilitate a resolution, often making suggestions for compromise that may not have previously been considered and bringing an objective view to the dispute.

The parties remain in control throughout the Mediation and it will only lead to a binding settlement where terms for resolution are explicitly agreed. In the event that agreement cannot be reached, either party is free to issue or continue with court proceedings in the usual way or to explore another approach. 2.Arbitration Arbitration is more formal than Mediation and is usually reserved for larger commercial disputes, or disputes which concern a highly technical, complex or niche area of disagreement.

To pursue this method of ADR, a neutral third-party arbitrator who is an expert in the area concerned, will be appointed to hear evidence and make a legally binding decision on behalf of both parties. The arbitrator can be appointed by either party to the dispute, or by a professional body that both parties have agreed on.

The arbitrator’s decision is binding and can be enforced through the courts if needed.

3.Negotiation The most informal of the 4 common types of ADR, Negotiation can begin at any time and will usually be conducted by the parties’ lawyers, either through written correspondence, telephone calls or round-table meetings; always with the ultimate aim of reaching a pragmatic and commercially sensible agreement and preventing the matter going to court.

4.Conciliation Conciliation is a method of ADR which is often reserved for employment disputes, as it is something which most employees must pursue before they can bring a claim to the Employment Tribunal. Similar to the Mediation process, a conciliator will discuss the issues with both parties to reach an agreement, but their opinion is not legally binding.

The benefits of ADR

Even setting aside the obvious benefit of avoiding litigation and the significant cost, stress and delays that are associated with court proceedings, ADR can offer a huge number of advantages:-

• Privacy – Unlike most court proceedings, ADR discussions take place behind closed doors, meaning disputes can be dealt with in a confidential manner, protecting the reputation of all concerned.

• Leniency on costs – Because ADR is actively encouraged by the Civil Procedure Rules and the courts, you may suffer costs consequences if you do not engage with, or give serious consideration to the methods available. By exploring these options in good faith, you will be helping to protect your position on costs should the matter ultimately end up in court.

• Flexibility – ADR does not impose limits on what you can agree to do in order to achieve an acceptable resolution. It is much more flexible and responsive to the individual needs of those involved, meaning parties are often able to agree more unusual settlement terms which may not have been approved within the rigid limitations of the court system.

• Control – ADR allows you to stay in control of how a dispute is resolved rather than placing the decision in the hands of a court. It also gives the parties autonomy to decide where and when the ADR will take place and the details of any third parties who will be involved. Finally, because anything that is discussed during ADR is usually treated as “without prejudice,” all parties are free to negotiate freely, safe in the knowledge that their words cannot be used against them if the dispute ends up in court after all.

• Preservation of business relationships – As the needs of all parties are considered during the ADR process and the focus is very much on both parties working together to find a solution, the outcome is more likely to suit the needs of everyone involved. This can help to minimise conflict and allow the parties to preserve a more positive relationship going forward.

Choosing the right law firm

Before navigating the emotional and legal complexities of any dispute, it is important to have the right advisor by your side.

At Swinburne Maddison, we put our client’s needs at the centre of everything we do and recognise that all of our clients have unique priorities and objectives. Whether acting on behalf of a private client, private sector business, or public sector organisation, at the heart of our Dispute Resolution team’s work there is always a pragmatic attitude and high-quality service, which is tailored to the individual circumstances of every case.

What our client’s say:-

“The team has been excellent at communicating complex legal issues to a group of clients with varying degrees of legal knowledge. The accessibility of the team is good, the knowledge and breadth of experience that individuals are able to draw upon in the team is great.”

Legal 500 UK 2023 Edition

For further information or guidance on any of the issues covered in this article – or for advice on an active dispute – please contact David Low on djl@swinburnemaddison.co.uk or by phone on 0191 384 2441.