Mediation and alternative dispute resolution
The courts expect the parties to a dispute to attempt to resolve their issues before issuing court proceedings.
If a party unreasonably refuses to attempt to resolve their dispute or follow the correct pre-action procedures that have been set down by the courts, this can have adverse effects on their ability to claim their legal costs later on.
We regularly engage in alternative dispute resolution with our clients
Alternative dispute resolution is a generic term for this negotiation process and includes such activities such as mediation, informal negotiation, adjudication and expert determination, as well as others.
Mediation is a means by which the parties can liaise with each other via an independent third party, who will look to try and find common ground and/or a means by which the parties will agree to settle their dispute. It can be very effective if used at the right time and with the right mediator.
Adjudication is a means by which the parties to a construction contract can resolve their disputes.
Expert determination can often be a useful way of resolving a dispute without the cost and time of formal litigation through the courts. Then parties agree to appoint an expert in the area in question and then submit the dispute to him or her to make a decision about who is in the right and who is in the wrong. The parties can agree to be contractually bound by this decision.
Informal negotiation is conducted without prejudice to the parties’ claim. This means that, subject to certain rules and principles, the parties can engage in correspondence without damaging their claim or arguments in relation to it.
The defining characteristic of alternative dispute resolution is that the parties are generally free to agree to whatever terms they consider appropriate as to how the dispute will be resolved. This flexibility is not readily available through the courts, which have very strict rules on how a dispute will be resolved and which must be observed at all times.