The traditional method of dispute resolution, and the one most familiar to people, is litigation. It typically involves going to court and trying to prove your side of the case to a judge, who then decides which party wins or loses. Litigation is a very formal process and can be costly in comparison to some of the less adversarial methods of dispute resolution. These other options are known as alternative dispute resolution (ADR) and should be considered before taking a case to court.
So, what are the main alternatives and their benefits or drawbacks?
This is quite similar to litigation. The parties can agree to appoint an independent arbitrator or panel of arbitrators who will hear the dispute and make a final decision (‘award’) on the matter, which can be enforced by the court.
Although the process could potentially be just as expensive and time consuming as litigation, there are some benefits. If they are in agreement on this point, the parties are able to choose their own expert arbitrator for issues that are extremely technical. Moreover, arbitration takes place in private unlike public court proceedings, which is important where the circumstances require strict confidentiality. Finally, there is some flexibility as to the timescale of the procedure and where it is to take place.
Through this process, a neutral third party can help the parties to establish the issues and work through these in an attempt to facilitate a settlement agreement. The mediator essentially acts as an intermediary through which the parties can put forward their views. If a settlement is reached, it may be enforceable as a contract.
A key benefit of mediation is that the choice of whether to settle is down to the parties, and the agreement can be made on their own terms unlike in litigation or arbitration where more limited solutions are available. Also, the mediator can help to prevent hostility from arising or any existing hostility being aggravated. This might be essential where the parties wish to continue their relationship.
However, the fact that the process is completely voluntary can be a downside, as it means that time and money may be wasted taking part in mediation just for the other party to withdraw before settlement is reached.
The process is very similar to mediation, but the main difference is that the conciliator is able to propose solutions to the parties.
Discussions can take place informally between the parties or their solicitors. It is completely private and can be the quickest and cheapest method of dispute resolution. Also, the parties have complete control over the process and its outcome.
Nevertheless, it may in some cases prove to be difficult to come to an agreement without an independent third party, and there is a risk that discussions may be deadlocked for some time.