Do you remember those halcyon school days when you would hear chants of “fight, fight, fight” and turn around to see a group of school chums running excitedly to an already-formed circle of spectators? You would push your way to the front of the circle past that peacenik child asking, “can’t we all just get along?” to disappointedly see two lads (usually) conducting some disappointingly odd form of Greco-Roman wrestling before it was inevitably separated by a teacher sending them to the headteacher to recite the common “he started it” refrain. All to a chorus of boos from the disappointed masses. No? I think it might be a little different now.

Of course, what those two budding Rocky Marciano’s really needed before it got that far was somebody to intervene and suggest Alternative Dispute Resolution, commonly known as ADR, to resolve the issue.

Why should you consider Alternative Dispute Resolution?

Litigation is notoriously expensive and very slow. No party comes out with 100% even if they ‘win’.  ADR remains the best alternative when you really want to fight, but the risk versus reward is not clear, as is usually the case in most commercial disputes. So…what are your ADR options?

Mediation Services

Mediation is a popular form of ADR.

You and your nemesis are usually separated in different room (real or virtual), and a qualified mediator alternates between you looking for areas that can be agreed upon and seeking out where compromises can be made.

If successful, the mediator will draw up an agreement between the parties, which can be attached to a consent order (if proceedings have started) to bring the matter to a close. If you cannot reach common ground, then litigation remains available to you.

Mediations are conducted ‘without prejudice’, meaning any discussions or offers made during the mediation cannot be referred to if proceedings continue. Mediations are non-binding unless attached to a consent order by agreement, allowing the parties to fully explore whether there are any grounds for agreement.

What does arbitration mean?

Arbitration clauses are often inserted into commercial contracts as an alternative to litigation, which the parties must consider (if not abide by) before issuing proceedings.

The parties can agree on an arbitrator or have one selected for them (usually an expert in the field) to hear and determine the matter. The arbitrator has similar powers to a judge to make any party do something. Their decision (called an ‘Arbitration Award’) is binding on the parties and can be enforced through the courts.

The arbitrator will meet with both parties individually before deciding the timetable and procedure, giving arbitration a degree of flexibility over litigation.

At the end of the hearing, the arbitrator makes an award in a similar way to a court, with one party emerging as the beneficiary. Awards are binding on the parties as to the facts but can be appealed to the High Court on the point of law.

Arbitration awards are the only form of ADR binding on the parties and can be enforced through the courts if not complied with.

ADR has expanded to a myriad of options. Below are just a few.

Early Neutral Evaluation The parties ask a neutral third party to give a preliminary view of their positions and make a recommendation.
Expert Appraisal An expert in the disputed field gives a non-binding opinion.
Judicial Appraisal A legal expert offers a preliminary appraisal of the merits of each party’s legal position. Parties can decide whether it should be binding.
Expert Determination An expert gives a binding opinion on the dispute. The opinion cannot be enforced as a court order but does form a binding contract.
Final Offer Arbitration An arbitrator is asked to choose between the ‘final offers’ put on the table by each party.
Med-Arb Parties first attempt mediation with the proviso that if it does not work, they proceed straight to arbitration.
Mini-Trial An independent party sits as chairperson, and negotiations proceed with help from the chair, to see if the matter can settle.

Solicitor Mediation

Gordons will always be happy to fight your corner but will always suggest you consider ADR before things go too far and the wrestling circle is formed!

To speak to a solicitor about Alternative Dispute Resolution, please contact the Commercial Litigation team at Gordons Partnership today. You can call us on 01483 451 900 (Guildford) or 020 7421 9421 (London). Alternatively, please email sols@gordonsols.co.uk.

About the Author

Justin Reed
Solicitor