In an ideal world, we would all like to avoid disputes. There are, of course, proactive measures that can be taken to achieve this. Clear communication, detailed contracts and early intervention are just some of the ways disputes can be avoided. However, people like me are here to assist for the times when this is not possible.
It is understandable why people often find dispute resolution overwhelming or intimidating. Court can be a scary place when you do not spend regular time there (and I do hope none of you do unless you share my profession). However, there are alternative dispute resolution (ADR) methods that can cut out the court entirely.
The ADR method you choose should be based upon your specific circumstances and the resolution you hope to reach.
1. Adjudication
Adjudication has quickly become a favoured method of ADR since it is usually much quicker, less formal and the most cost-effective alternative to traditional commercial litigation.
The process works by the parties on either side of the dispute appointing a third neutral party to review both sides of the argument. The third party will then make a legally binding decision based on the information provided.
Benefits: Cost effective, speed efficient, minimal disruption, flexible
Challenges: Potential for rushed decisions, no cost recovery, enforcement challenges
2. Arbitration
Arbitration bears many resemblances to adjudication. The process is fairly similar; two parties experiencing a dispute appoint a neutral third party to present evidence to and that third party will make a legally binding decision.
However, the main difference between arbitration and adjudication is that arbitration is a longer, more formal process. Arbitration will involve formal hearings and is usually preferred for more complex disputes.
Benefits: Finality of decision, opportunity to present greater supporting evidence
Challenges: Limited appeal options, higher costs, resolutions can take longer to reach
3. Early Neutral Evaluation
Early Neutral Evaluation (ENE) is a non-binding ADR method that gives parties an independent and expert opinion on the merits of each side’s case.
The purpose of ENE is effectively to help both parties see the case from the other’s side and encourage them to reach a negotiated resolution. Having an experienced specialist barrister objectively assess the case at an early stage will help the parties consider if it is wise to take things any further.
Benefits: Saves time and potential stress, efficiency, early assessment
Challenges: Non-binding, increased cost (if further action is taken), not suitable for all disputes
4. Mediation
Mediation is another ADR method that involves a neutral third party. However, in these cases, the third party helps the two disputing parties reach a joint resolution.
The mediator will ask questions, reframe issues and help the parties understand each other so that they can come to their own, mutually acceptable solution. Mediation is available to all parties before or during a dispute before the conclusion of a trial.
Benefits: Flexibility and control, relationship preservation, reduced stress
Challenges: No guaranteed outcome, lower enforceability, potential for power imbalance
Which path should you take?
This breakdown is only a brief overview of each ADR method. While I hope it helps guide your decision, I would strongly suggest seeking further legal advice before committing to any decision. Mercantile Barristers are experts in each method of alternative dispute resolution. We can help you choose the ADR method best suited to your dispute, help you prepare for the process and offer continued advice.
