Keeping Out of Court – The Growth of Alternative Dispute Resolution 

Not every consumer or business dispute needs to go to court. Experienced business dispute lawyer Marcus Croskell frequently helps his clients in Norfolk, East Anglia and London to avoid unnecessary court cases, ultimately saving time and money while achieving an agreeable settlement. Resolving disputes through negotiation, arbitration, mediation or other processes all come under the heading of Alternative Dispute Resolution (“ADR”). Lawyers, including direct public access barristers, are often involved in these cases and help to prevent them from ending up in the courtroom.

Courts are increasingly requiring those involved in a range of disputes to attempt mediation, for example via round-table discussions, before deciding to go ahead with a case. Now use of ADR looks set to become even more widespread in the future, since the Government wants to encourage this route and has introduced a new regulatory regime.  The Courts across the country and on appeal in London have been keen to penalise parties to litigation that unreasonably fail to engage in ADR or some form of mediation prior to and after commencing proceedings.

ADR Regulations 2015

New ADR regulations are coming into force from 2015 onwards. Under the first set of rules, which came in from July, all businesses selling to consumers will have access to a certified ADR services provider within their sector. The Government says it aims to make ADR services more consistent and raise quality by certifying providers.

The new regulations do not make it mandatory for businesses to agree to ADR, but from October 2015 onwards there is a new information requirement for traders. This means that, in the event of a dispute, they will have to give consumers the details of a certified ADR provider and say whether they intend to use that provider's service 

There are some types of regulated business where use of ADR is already mandatory to settle disputes, for instance in the financial sector and for companies belonging to some trade associations, and this will continue to be the case. It's important for businesses to be aware of the new regulations and the Department for Business, Innovation & Skills has issued detailed guidelines on how to comply. 

By way of example under the pre-action protocol for disputes involving construction and engineering, the parties are expected to have obtained experts reports on each side’s position and talked prior to issuing proceedings in the county court or the specialist Technology and Construction Court (part of the High Court).  The pre-action protocols have been developed by the senior judges to guide parties through the litigation process in a predictable and organised fashion to reduce costs.  Failure to do comply with pre-action protocol may result in sanctions including an immediate stay of proceedings to ensure the claimant complies with the pre-action requirements or later on it may result in a penalty in costs.  These types of disputes can be over a few thousand pounds to multi-million pound developments.  Therefore the potential loss of one’s own costs can be in the tens or hundreds of thousands of pounds. 

Parties ignore these provisions at their own peril.

Reasons to Use ADR

Alternative Dispute Resolution can be a good way to settle disputes because it is typically cheaper and quicker than going to court, which can be a drawn-out and time-consuming process. Disputes can often take up a lot of staff time for a business, if their customer care departments have to have long discussions with the consumers concerned, so referring a case to ADR can help to free up star time.

As well as the advantages in terms of speed, there is greater privacy, since negotiations of this type are carried out behind closed doors rather than in public. This also helps to make the whole process of seeking a resolution less stressful. In addition, resolving a dispute via ADR can mean there is room to be more flexible and the parties can have greater scope to find a solution that is acceptable to them rather than it being imposed by a court.

Another reason to consider using ADR is that if you refuse to consider mediation and go straight to court, then you may potentially find the court penalises you for this decision.

How Does ADR Work?

The procedure for mediation can vary depending on the ADR provider being used, how complicated the dispute is and various other factors. However, in general, after agreeing to use a mediator, the parties involved will provide one another with summaries of their cases, together with supporting evidence, and will also supply this to the mediator. Evidence will need to be prepared in advance.

After the mediator introduces themselves to the parties, he or she will aim to facilitate an agreement or solution. This may involve an initial joint meeting followed by meetings with the different parties separately. Once an agreement has been drawn up and signed by the parties to the dispute, it will be binding on them.

It can be very helpful to have legal representation from an expert contract dispute lawyer during the ADR process, especially if the issues that you are considering are complicated. Having the benefit of legal advice and representation will help you to focus on your wider interests and ensure that you reach a workable settlement.

Marcus Croskell – Business Dispute Lawyer

As a specialist business lawyer, Marcus Croskell has extensive experience of ADR, including contractual dispute resolution, and has represented many small and medium businesses in this type of dispute. He can advise you on the best approach and work with you to reach a satisfactory solution without the need for court appearances.

If you are looking for a business dispute lawyer in Norfolk, Cambridgeshire, Suffolk, Essex or London contact Marcus Croskell now at EA Law – East Anglian Chambers for a free initial phone consultation on 0843 8862603 or EMAIL HERE.