insideKENT Magazine Issue 48 - March 2016 | Page 135
LAW
ADVERTISEMENT FEATURE
KEEPING
DISPUTES OUT
OF COURT
In response to rising court fees, an
increasing number of people are
deciding to adopt Alternative Dispute
Resolution as a cost effective way
to resolve a dispute, writes David
Morgan of law firm Cripps.
David Morgan
Alternative Dispute Resolution, or ADR, refers to methods of resolving
disputes without going to court. In comparison with court proceedings,
parties generally have a larger degree of control over the process and can
freely withdraw before a settlement is reached. They are also actively
encouraged by the courts to consider ADR as an alternative to court
proceedings, and cost penalties may be imposed if they refuse.
Some disputes may also be suitable for referring to an ombudsman to
investigate as part of a complaints procedure. There are different schemes
covering areas such as financial services, legal services and estate agents.
Advantages and Disadvantages of ADR
The main advantage of ADR is it can be significantly faster and cheaper to
resolve a dispute without long and expensive court proceedings and the
associated costs.
There are a number of types of ADR which may be suitable, depending
upon the underlying dispute.
Types of ADR
Negotiation is the simplest and most flexible form of ADR. During negotiation,
which could include a settlement meeting, the parties will attempt to
reach an agreement on the issues in dispute, without the involvement of
a third party.
party.
In contrast, mediation is when parties identify the key areas
areas in
in disagreement
disagreement
and explore the possibilities for resolution with the assistance of an
independent mediator. The mediator will not direct
direct the
the parties
parties or
or give
give aa
binding decision. It is the parties who decide whether to settle the dispute,
and will usually sign an agreement to make the settlement binding. Like
negotiation, mediation can be used for many different types of dispute,
although the additional costs of a mediator should be borne in mind.
Expert determination involves referring all or part of a dispute to an expert
to decide and is most suited to issues of a specialist or technical nature,
such as where a professional or scientific opinion or a valuation is required.
required.
The expert’s
expert’s decision
decision is
is binding
binding upon
upon the
the parties.
parties.
ADR is flexible and parties can select the method that best suits their specific
needs. It can also enable disputes to be resolved privately,
privately, which
which can
can be
be
particularly important when dealing with sensitive personal or commercial
matters. A less confrontational process can also make for easier ongoing
relationships when a dispute is concluded.
However, ADR may not be suitable in all situations. For example, if an
individual seeks a remedy that only a court can award,
award, such
such as
as an
an injunction
injunction
to stop a specific action, ADR will not assist. Some forms of ADR are nonbinding and awards can therefore be harder to enforce than court orders.
orders.
Generally, ADR should be considered in most disputes. Courts expect
parties to actively consider ADR and may impose cost penalties if they
don’t. In any event, it can be more cost effective, flexible and confidential
than litigation.
David Morgan, Associate
[email protected]
01892 5060489
In an executive tribunal, both parties appoint a representative to make a
formal presentation to a tribunal. This tribunal will generally consist of a
neutral third party chair wh