Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution (ADR) and Non-Court Based Dispute Resolution (NCBDR) represent the way forward for all civil and commercial legal matters in England and Wales.
What Is Alternative Dispute Resolution (ADR)?
Alternative Dispute Resolution (ADR) describes several different legal pathways whereby two parties can resolve their dispute without appearing in a court of law. ADR is not just ‘encouraged’ by the Courts of England and Wales, but it is now becoming an ‘obligation’, for two parties in civil or commercial matters, irrespective of the strength of the case, they must attempt to resolve the matter outside of the court system.
This means that, however strong your case may be, there is always reason to engage in ADR. There is always a risk that you may not win everything you seek at trial. Of course you may lose, however good you think is the strength of your case. You will incur more costs going to trial, than you will, seeking to settle earlier.
A Recent Court Of Appeal Ruling
There has been a recent ruling in the Court of Appeal (29th November 2023), that puts ADR as the first step in resolving all civil or commercial matters in the future.
The effects of this ruling will likely mean all parties in civil or commercial disputes will have to seek to attempt to settle their cases outside of Court (and going to Trial, if already in the Court system).
Why Should You Avoid A Trial At Court?
More recently, the Court of Appeal has ruled that it expects the parties to engage in Alternative Dispute Resolution (‘ADR’), and Courts can and will order parties to engage, (whether you wish to, or not) in mediation. It has always been the case since the Civil Procedure Rules 1998 were brought into force, that settling cases without resorting to going to court has been encouraged.
- Too many unknowns in terms of prospects of success and unclear range of legal costs and time lapsed to reach a court decision.
- However good the advice you receive, nothing is for certain! That includes the Judge’s discretion and preferred evidence, which can be sometimes dependant upon delivery, presentation, and credibility on the day(s) of trial.
- Evidence has not been tested.
- Perceptions of any party are generally subjective and not objective.
- Perspectives in which circumstances are regarded are difficult to rely upon, without an understanding of the culture and thinking of the courts.
The main reason for encouraging such behaviour between parties embroiled in a disagreement or dispute is that nothing in litigation is for certain. The outcome of your claim or your defence is uncertain. You should always be given estimates of costs, and a costs/risk analysis by your solicitor, once sufficient information is to hand.
What Are The Options For ADR?
There are numerous ways in which Alternative Dispute Resolution (ADR) can be explored, which includes, but is not limited to:
- Without prejudice talks between solicitors.
- Negotiations between solicitors, with and without the parties present.
- Preparation and advocating in arbitration. (i.e., where an arbitrator, or arbitrators are appointed to decide upon issues to which the parties are bound (including Beth Din work).
- Mediating as legal representative on your behalf in a formal mediation.
- Preparing and advocating in an Early Neutral Evaluation either privately or before the Courts on a non-binding basis.
Non-Court Based Dispute Resolution (NCBDR)
Non-Court Based Dispute Resolution (NCBDR) is the current culture of Family Law cases in respect of children and financial matters in divorce.
For those who have not been ordered by the courts to do so, where one party seeks to engage in ADR, and the other refuses because of the perceived strength of their case, there will more than likely not, be adverse costs consequences against the non-engaging party.
For those not yet in the Court system, it is only a matter of time before all parties will be required to exhaust ADR before proceedings are issued.