When faced with a claim or dispute, it is very important to seek a resolution at an early stage, to avoid having to go to court. Alternatively, if you have commenced a claim, you should try to settle this before it reaches the stage of the court deciding the outcome of your matter.
In fact, the Courts of England and Wales place an obligation on parties to try and settle matters by way of Alternative Dispute Resolution (‘ADR’). A party who fails to engage in ADR without good reason can be faced with adverse costs consequences if the court decides they have unreasonably refused to engage in this process. This can be the case even if you ultimately win your claim.
There are different types of ADR. The most common ones are:
Parties in dispute can settle their differences by way of negotiating terms of settlement. This can be done on a ‘without prejudice’ basis, meaning that the court will not be given any details of what has been discussed or disclosed should the negotiations not conclude in an agreement. This allows the parties to freely discuss the pressing aspects of their dispute, without fear of adversely impacting their position. If successful, appropriate terms of settlement can be drawn up putting an end to the dispute between parties. The Agreement then becomes enforceable in the courts.
This is a meeting between the parties and a Mediator, with the aim of reaching terms of settlement. The Mediator is independent of the parties and his/her identity and appointment will normally be agreed by the parties in advance. The Mediator will often be an expert in the field of the matter in dispute. Mediation is not a legal proceeding. The parties do not give evidence and other than an initial meeting at the start of the mediation to introduce the parties, their representatives and the Mediator, each party and its representatives are in separate rooms. The Mediator does not determine the dispute. He goes from room to room trying to narrow the issues between the parties and ‘encourages’ them to reach a settlement. Everything discussed at a Mediation is ‘without prejudice’ and cannot be raised before the court if the Mediation does not result in an agreement being reached. If an agreement is reached, then the parties must enter into and sign a settlement agreement at the conclusion of the Mediation in order for the Mediation result to be binding. Once such agreement is signed by the parties it can be enforced in the courts.
This allows the parties to submit the issues in dispute to a single Arbitrator at an Arbitral Tribunal who will make a binding award on the dispute. Unlike court proceedings, arbitration is a private procedure and no aspect of it will be in the public domain. However, the matters discussed and argued at an Arbitration are not without prejudice and the Arbitrator/Tribunal makes a legally binding award based on the facts and law. The Arbitrator’s decision can be enforced in the courts.
In some circumstances, such as building contracts, the contract itself provides for the possibility of an Adjudication instead of Court Proceedings. The process is commenced by one the parties serving ‘Notice of Adjudication’ which results in a body such as the Royal Institute of Chartered Surveyors appointing the Adjudicator. The Adjudication process is very fast with the Applying party having to set out its claim in full in a ‘Notice of Referral’ within 7 days of the Notice. On receipt of the Notice of Referral, the Responding party will normally have 7 days to respond in a ‘Response’ but may ask the Adjudicator to extend this time by up to a further 7 days. The Adjudicator then makes a decision within 14 days. In some cases, the Applying party will be given permission to respond to the Response (known as a ‘Reply’) and for the Responding Party to respond to the Reply (known as a ‘Rejoinder’.) An Adjudication is a paper-based process. The parties do not give evidence. The Adjudicator’s decision is binding on the parties and can be enforced in the courts.
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