Alternative Dispute Resolution is so popular, but why?

Most of us will have had a disagreement in the workplace or differing opinions on how things should be done. It is human nature to have varying views and to want to express how we feel. Is Alternative Dispute Resolution (ADR) the ultimate solution? According to a report published in July 2019, Alternative Dispute Resolution is more popular than litigation.

Most disputes, however, can be resolved quickly. But what happens when a disagreement is more ingrained or complex? What do you do when you simply cannot reach a settlement or solution with your adversary?

Read on for all you need to know about Alternative Dispute Resolution.

What is dispute resolution?

If you have had a disagreement and come to a satisfactory conclusion, then you have experience with standard dispute resolution.

Essentially, it involves the process of resolving a disagreement between two parties.

In this instance, we will be discussing civil disputes which are clashes that do not involve a criminal element or criminal proceedings.

Examples of civil disputes can include:

• Breach of contract 
• Property disagreements
• Landlord and tenant disputes
• Workplace quarrels

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Cannot resolve a dispute – What happens?

Not all disagreements can be resolved at the initial stage of resolution. Simply just acknowledging your differing opinions and moving on in life does not suit every person and every circumstance.

You could be in a situation where a more formalised conclusion or compensation is warranted. If so, then it is likely that you will need to proceed to use an ADR process.

What is Alternative Dispute Resolution?

Alternative Dispute Resolution is an interim measure that serves to prevent unnecessary litigation. It can often be quicker and more economical than proceeding to court.

Additionally, courts will often expect a form of Alternative Dispute Resolution to have been attempted. Therefore, it is always a worthwhile route before commencing proceedings

When should I use Alternative Dispute Resolution?

You should only look to approach ADR once you have tried to resolve matters amicably.

Predominantly, this involves going through any relevant customer service or internal complaints procedures. Once you find that you have reached a stalemate and are getting nowhere, then you can reasonably approach an Alternative Dispute Resolution scheme.

Are Alternative Dispute Resolution Schemes common?

Depending on the reason for your disagreement, you may find that some companies already use large and well-established resolution schemes.

For example, in the UK, most financial services, energy and telecommunication companies will use a regulator to aid with ADR.

Examples of some Ombudsmen that deal with dispute resolutions in the UK include:

• Financial Ombudsman Service (FOS) – For complaints against financial service providers 
• Renewable Energy Consumer Code (RECC) – For grievances against energy suppliers
• Communications Ombudsman – For complaints against communications providers
• Parliamentary and Health Service Ombudsman – For complaints against NHS organisations and government services 
• Last but not least is the Alternative Dispute Resolution Services operating in the UK and across the EU

You may be dealing with a company that may fall outside the remit of the above ombudsmen. However, there are also several voluntary Alternative Dispute Resolution schemes that many businesses use.

The four main types of Alternative Dispute Resolution

Have you found yourself at an impasse during your negotiations?  Do you wish to approach an Alternative Dispute Resolution scheme? Then we recommend that you seek legal advice from an expert first. An Alternative Dispute Resolution solicitor will often listen to your case before offering advice and recommending one, or more, of the following courses of action.

There are four main types of ADR. These are as follows:

1. Negotiation

Firstly, some form of communication should have taken place by this point.  However, you may want to approach this again with the aid of your legal representative. You can do this in person or writing.

2. Mediation

Secondly, this is often a quicker and cheaper option than proceeding to litigation. Both parties will work with a mediator to try to reach a suitable agreement. A mediator is always an impartial person. However, you can involve your alternative dispute resolution solicitor in the meeting if necessary.

A resolution can only be reached in mediation if both sides agree. Nevertheless, the outcome is not legally binding.

3. Arbitration

Like a court process, arbitration involves both sides presenting their case in front of an arbitrator. Much like a judge, they will then decide on how to resolve the dispute. This is a more expensive and confrontational approach. Yet, the outcome is binding and generally must be accepted.

4. Collaborative Law

This method involves one or a series of meetings between the parties and their solicitors. Both sides are required to sign a contract confirming their commitment to resolving the disagreement. The sessions will continue until an accord is made.

Are Alternative Dispute Resolution decisions legally binding?

Simply put, mediation is not legally binding, but any arbitration outcome is.

Mediation: This option allows both parties to have more control over the outcome, rather than it being made for you. A mediator has no power to make a decision. Generally, it means that any dispute will be resolved based on the terms decided by both parties.

The conclusion is not legally binding, but you can sign a legal agreement confirming your resolution.

Arbitration: This option is final and legally binding and can be enforced in the same way as a court judgement. The outcome can be appealed, but only when mitigating evidence or information comes to light following a ruling.

What are the benefits of Alternative Dispute Resolution?

Aside from a court expecting that all parties have explored every avenue to resolve the dispute before litigating, there are advantages to using Alternative Dispute Resolution.

These benefits can include:

• It can often be less confrontational than attending court
• It is usually less costly
• When attending court, confidential information will often need to be disclosed; therefore Alternative Dispute Resolution is generally more private
• Less stressful as court cases often drag out for a long time; sometimes years
• You have more of a voice as you are actively involved in the process

Is it worth hiring a solicitor to help with Alternative Dispute Resolution?

A legal expert can be invaluable in helping to resolve disputes, primarily when proceeding to use an Alternative Dispute Resolution process.

These benefits can include:

• It is constructive to have someone working on your side that understands the process and the legal system.
• There is often a great deal of paperwork. Some of this is complex and may be difficult for a layperson to complete accurately.
• A solicitor will be able to provide advice and guidance at every step of the claim or defence.
• They will be able to correspond and communicate with the other party or their solicitors. This can be useful if a relationship has turned fractious.
• A representative will be able to act for you or attend any meetings with you.
• A solicitor will be able to provide you with advice about the likely outcomes of litigation.
• They will be able to develop a legal strategy and liaise with a barrister if necessary.
• Once a ruling has been made, they will be able to provide advice about appeals or enforcing a judgement.

What should I do after trying Alternative Dispute Resolution?

Proceeding to litigation should only be used as a last resort. Aside from the courts expecting you to have exhausted all options, it can also be expensive, time-consuming, and more stressful.

So, what can you expect once you have received the green light from your legal representative that litigation is the best course of action?

You will work with your Alternative Dispute Resolution Solicitor to develop a case. This will involve gathering evidence and assembling witnesses that will be able to assist with your claim or your defence.

Once a trial date has been set, you will need to state your argument before a judge. With all civil cases, the outcome is based on evidence and the balance of probabilities.

If you are the claimant, then the burden of proof rests on you. Therefore, your case will need to demonstrate that the defendant is liable.

If you are the defendant, then you will need to form a rebuttal against their evidence.

The ruling by the judge is legally binding. However, these are not generally enforced by the legal system.

Often, the individuals will need to ensure that a judgement is being followed or carried out. If not done, then you can seek to have the judgement enforced, but this will involve additional time and costs.

It is worth noting that, even when in the process of litigating, you should still be willing to negotiate and compromise a settlement. A readiness to do so can sometimes have an impact on who is liable for any unnecessary legal costs.

Key Takeaway

Resolving a dispute can be a stressful, time-consuming, and emotional process.

Having tried and failed with Alternative Dispute Resolution, if you still find yourself at a deadlock or your wits-end, then merely seeking legal advice on your case will make a world of difference. If you want legal counsel, guidance or a second opinion then give one of our expert litigation solicitors a call today.