For most people being involved in a legal dispute is rare, but when it happens it can be nerve-racking, time consuming and above all costly.
Your lawyer will have the client’s best interests at heart and this should always include advice about the most cost-effective methods to resolve a dispute.Taking proceedings through the courts should always be viewed as a last resort, but sometimes this cannot be avoided.
The best practice of finding an alternative means to resolve a civil legal dispute is now formally recognised in the court rules and the penalties for ignoring them are becoming clearer. But what are the alternatives to court proceedings?
The first and, perhaps most obvious is face-to-face discussion and negotiation between the parties usually facilitated by their lawyers. This is not always possible if the parties’ positions have become entrenched. Involvement of an independent third party may help to resolve the dispute.
Mediation provides a more formal negotiation platform. The parties meet to discuss and negotiate with the help of an independent trained mediator who will explore with the parties whether there is any chance of a compromise. If agreement can be reached, all well and good and that agreement will be binding on the parties. If agreement is impossible, then the parties can walk away and resort to other means of dispute resolution. The Courts certainly seem to favour mediation. Many County Courts offer a mediation service. If a party unreasonably refuses an offer to mediate and continues with litigation or acts unreasonably during mediation, they may be penalised in costs.
If the dispute is about a single issue or the interpretation of a document, the parties may agree that an independent expert with a particular expertise in the subject matter of the dispute should review the case and give a decision that will be binding on all the parties.
Many contracts entered into by individual consumers and commercial enterprises contain provision for disputes to be dealt with by arbitration. Arbitration operates under a statutory framework and any decision is legally binding on the parties, although they do have a right of appeal if aggrieved.
All the options have cost consequences. Some are more expensive than others and an estimate of the likely costs involved should be obtained before embarking on any one of them.
It remains open for parties in dispute to litigate, but the Courts are increasingly looking to them to be reasonable and to explore other options first. Litigation should be a last resort.
For expert advice on all Alternative Dispute Resolution related issues – telephone Dutton Gregory LLP on 01962 844333.
