CORONAVIRUS UPDATE FOR DISPUTE RESOLUTION CLIENTS
Bonallack & Bishop remains open for business and hope to provide as near a full service as normal – for both existing and new clients.
To minimise the need for direct face-to-face contact, our Solicitors are happy to run your case by phone, video call or email.
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?
Worried about a dispute? Our Dispute Resolution team always offer FREE initial phone advice with no strings attached.
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
- Conciliations and ombudsmen
- Early Neutral Evaluation
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. 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”.
ADR Mediation can be conducted in parallel with litigation. It can be a highly effective dispute resolution process, and is cost effective.
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 to prove that, the head of our dispute resolution team, David Patterson, is a qualified mediator himself – and has been so since he completed a Mediator Accreditation course with the ADR Group all the way back in in May 1997.
So if you instruct us, you’ll know you got someone on your side who not only believes in ADR, but can see your case from the point of view of the mediator as well as the solicitor. 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.
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