Court bad – settling good: Alternative Dispute Resolution
The media portrays UK society as becoming more frivolously litigious and resembling the ‘law suit culture’ of America. The truth is more and more people are choosing other avenues to resolving disputes. This is for good reason: Court is unpredictable and can be expensive compared to many of the alternative dispute resolution (ADR) options available.
Even the Courts make it plain they would prefer not to see you in court. In most cases, the courts take a dim view of individuals and organisations who do not seek alternative dispute resolution before going in front of a judge.
Alternatives to Court
As the alternative dispute resolution methods become more formal, they become more binding. Choosing how far to take something can be a battle between commercial sense and emotional satisfaction.
The most British option on offer: just sorting it out between you can be by far the cheapest option. Handled correctly, it can cost nothing more than the price of a phone call or email. The best results are often had by those who can deal with the issues dispassionately and in the spirit of compromise. Blame, personal attacks, pride etc can all make matters worse. This needs to be handled with great care and without prejudicing the outcome of other more formal steps.
Balancing the cost and time spent defending your position and the range of costs for each of the other options below versus the reasonable amount you feel you should be awarded for damages can be a difficult sum to swallow, but often this will be the most commercially sensible route. You will have to take the high road and offer a compromise without goading the other side and lengthening the dispute. Your pride may take a hit too, but everything has a price.
If you want more protection, or you suspect your agreement will not be complied with, get something in writing. Even if it is not an official document, a written agreement between the parties will be taken into consideration if you have to undertake more formal proceedings.
Paying someone else to help you come to an agreement outside the courts. This is the most popular form of alternative dispute resolution. Having a mediator help orchestrate a compromise of some sort will cost less than taking a matter before a judge.
The benefit of having someone else orchestrate the agreement between two parties is neither party has to be face to face. This makes arguments, personal differences, clashes of personality and the gridlock they can lead to much less likely.
The mediator will be trying to reach a fair compromise between the two parties and, as it requires both to agree to the proposed settlement, if you are not willing to compromise to a reasonable degree, you may find the process pointless.
Although the agreement is not necessarily binding, having parties agree something in writing can be very effective. If one party fails to comply with the terms of any agreement reached, a court will take the agreement and subsequent failure to comply with the agreement into account when making a decision.
Compared to a court case, this option is significantly cheaper and can be much more swift.
Arbitration works much like mediation except the person conducting the process will make a decision for the parties and that decision is binding, much like a judgement from the courts.
The benefits of this form of alternative dispute resolution versus a court case are primarily cost and time. It is perfectly possible to complete the arbitration process on the same day and at a greatly reduced cost to both parties compared with hiring solicitors, barristers and other professionals.
Certainly, the risks involved mean it is important to have considered the possible outcome. Like the courts, even if someone is clearly in the wrong, the arbitrator will be looking to reach a fair solution and award damages or restitution equal to the amount lost by the wounded party. The key word again will be compromise. Unless one party is obviously in the right, the arbitrator will be trying to reach a middle ground between the two points of view.
Reaching an agreement
Of course, lower costs and quicker results are all well and good in principle, but if neither party is prepared to compromise or to stand by their agreement, it is unlikely alternative dispute resolution will be successful. If you are to make the savings in time and money afforded by alternative dispute resolution out of court you must be prepared to take the high road and approach the process expecting to receive less than you possibly might were you to have your case before a judge.
Unpleasant a reality as it may be, bear in mind the quantum of the cost of going to court versus the likely result. Very often, and especially in emotive disputes, people can have an inflated idea of their losses. Getting a truly realistic idea of your losses is one of the benefits of having legal representation, even if you do not like the amount they perceive you as having lost, it can save you disappointment at a trial. Even in alternative dispute resolution, a solicitor can help you work out what you have to gain versus the costs of different ways of pursuing justice.