Court versus Alternative Dispute Resolution

24/03/2016

Do I have to go to court to resolve my civil dispute? The short answer is not necessarily. There are plenty of other options.
 It is a common misconception that being involved in a civil dispute inevitably means that you have to trot off to court for a resolution i.e. litigation.

Considerations such as the fear of giving evidence; the cost of legal fees and the sheer investment of time, often deter parties from even getting a claim off the ground.

However, there are alternatives, in particular, settlement or Alternative Dispute Resolution (ADR).

Why should I consider them?

First off, you are strongly encouraged to do so by the courts.

The Civil Procedure Rules (CPR), Practice Direction – Pre-Action Conduct and Protocols, states:-

Litigation should be a last resort (emphasis added). As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.
Parties should continue to consider the possibility of reaching a settlement at all times.’

So there you have it, enshrined in the CPR itself. Even the Court of Appeal has made it clear in recent years that the courts can impose costs penalties on those who unreasonably refuse to consider other methods of resolving their disputes.

It is a sad truth that the courts are busy, slow, under resourced and expensive.

Where does this leave you?

The obvious answer is ADR.

What is ADR?

It is a collective description of methods of resolving disputes otherwise than through the normal trial process. This rather cumbersome definition can again be found in the CPR.

It provides a generally more speedy, informal, private and less legalistic alternative to court proceedings.

It is easier to understand by looking at the various different forms of ADR which are available:

Negotiation

The most obvious method is simple negotiation between the parties and/or their legal representatives.

Mediation

The best known and most popular.

A third party neutral (often a specialist in the relevant field) assists the parties to facilitate a negotiated settlement.

Covers wide ranging disputes relating to consumers, family law, personal injury, land and property, neighbour disputes, to name but a few.

Quicker and cheaper than conventional litigation. It has the advantage of leaving the parties free to find a private commercial solution.

Arbitration

Often arising from a private agreement i.e. a contract, between the parties which provides for arbitration as their preferred means of resolving any disputes. More typically found in commercial disputes.

Involves the appointment of a specialist arbitrator to resolve disputes outside the court process but in a judicial way.

Conciliation

Often encountered in employment disputes, where ACAS (the Advisory, Conciliation and Arbitration Service) has a duty to conciliate in most types of claim that can be brought in the employment tribunal, or disputes which could result in such proceedings.

At Pinney Talfourd we have the people and the expertise to help you take advantage of ADR to give you the very best chance of finding a resolution to even the most challenging of disputes.

More information

If you would like more information on any of these Alternative Dispute Resolution options please contact our Dispute Resolution Department on 01708 229444 or email mail@pinneytalfourd.co.uk


This article was written by Stephen Green, Partner at Pinney Talfourd Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at March 2016.

24/03/2016

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