To litigate or mediate that is the question…

Unfortunately, almost all of us will be involved in a dispute of some kind or other in our lives. You may have purchased something that is not working correctly or received a service which is not to the required standard.

Tristan Benson, Partner at Regional Law firm Tollers Solicitors and Head of the Dispute Resolution Unit has a wealth of experience not only in advising clients on the merits of their claim and the court process, but also in resolving disputes through using Alternative Dispute Resolution (ADR). Here he looks at the alternative options available to you should you decide to pursue a claim.

What are the alternatives?

The most common alternatives are negotiation, mediation, arbitration or adjudication.

Negotiation

Negotiations will generally be the first port of call when trying to resolve a dispute. They can take many forms including discussion between parties, calls between instructed solicitors or even a round table meeting between the parties. Negotiation can be the quickest and cheapest means of resolving matters, however, the parties must engage with the process and be willing to compromise.

Mediation

Mediation is becoming the most common method of Alternative Dispute Resolution. It involves appointing a neutral independently trained mediator whose aim is to try and narrow the issues in dispute, with the ultimate view of achieving a settlement. The intervention of a third party mediator can often help the parties to take a step back and consider matters with more objectivity.

Arbitration

During an arbitration, an impartial professional is instructed to make a decision on the dispute. The decision of the arbitrator is binding on the parties and there are limited grounds to appeal any decision. Arbitration is generally quicker than pursuing matters through the Court process.

Adjudication

Adjudication is widely recognised as the “pay now, argue later” mechanism for resolving disputes. It is generally used to resolve construction disputes and is designed to protect cash flow for business, by preventing one party withholding cash payments for significant periods of time.

Why should you look to resolve matters through alternative methods?

The main reason, as with most things, is cost. Litigating matters through to a contested trial can be a costly process and incredibly time consuming. For businesses especially, it can be very disruptive.

There is an expectation from the courts that parties will engage in some form of ADR before going to trial. A failure to do this, or an unreasonable refusal can result in costly consequences for a party.

In our experience, more disputes are settling these days by way of negotiation or mediation, and parties should certainly consider these options before engaging in the costly court process.

Having clear advice on what the best options are for you can help to save time and costs.


If you would like more information on your options… talk to Tollers on 01908 396230 and Tristan and his team will be happy to assist.