Alternative Dispute Resolution FAQs

Please note that the questions and answers on this page are for general information only and must not be used as a substitute for legal advice. You should always take legal advice which is tailored to your specific circumstances.

What is ADR? 

ADR stands for Alternative Dispute Resolution and is a term which includes methods to resolve disputes without requiring determination by a judge at a court or tribunal.

 

Why should I consider ADR?

Courts and tribunals actively encourage all parties who are in dispute with another to consider whether it would be appropriate to seek a settlement without requiring intervention by a judge. This will be a cheaper and quicker method of resolving a dispute than, for instance, proceeding in court to a trial and gives the parties flexibility as to how and when a dispute is to be addressed.

 

So what form does ADR take?

Examples include mediation, arbitration, early neutral evaluation and determination by an independent expert although this is not an exhaustive list. ADR can also include a without prejudice meeting between the parties (and usually their lawyers) to see if a practical solution can be agreed to bring an end to a dispute. Some of the more common examples are briefly explained below.

 

What is mediation?

This is the most common form of ADR whereby the parties jointly instruct an independent person (the mediator), to seek a practical solution that both parties are comfortable with. The mediator does not consider the merits of a party’s position. The mediation is conducted on a without prejudice basis which means that the content of discussions is private and confidential and not to be disclosed in any court proceedings that may be afoot at the time or issued subsequently. This allows the parties to be open and candid with each other and any settlement that is reached is usually contained in a settlement agreement and is binding.

 

What is arbitration?

This involves the appointment of an arbitrator(s) to determine a dispute. This is a more formal process than mediation and is also confidential. Usually the parties will prepare submissions for the arbitrator who will fix a timetable and is likely to hold a hearing where the parties give evidence. An arbitrator’s decision is binding although there is limited scope to appeal.

 

What is early neutral evaluation?

This involves the parties agreeing to make joint submissions to an independent person who is often a barrister, and assesses the merits of the claim based on the papers submitted and makes an assessment of the parties’ positions. This assists the parties with their further negotiations and is most effective if used early on in any dispute.

 

Determination by an independent expert?

This is a similar process to arbitration except that the expert may also undertake their own investigations into the case alongside the submissions made by the parties. The expert will make a binding decision in light of that. There is no statutory framework for these types of determinations and generally no right of appeal. They are often used to decide discreet points rather than a whole case. The parties agree the scope of the process and the procedure to be adopted.

 

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