In brief - There are several alternatives to the costly
and adversarial process of litigation
Traditional litigation can run for extensive periods of
time, incurring high costs while simultaneously polarising the
parties involved. Fortunately, there are efficient and effective
alternative dispute resolution processes providing businesses with
options that put them in control of resolving their dispute, making
it in an increasingly popular alternative to traditional
Disputes on the rise and court lists busier
An inevitable consequence of the Global Financial Crisis has
been a rise in instances of incomplete contracts and a frightening
trend of unpaid bills for services rendered. A knock-on effect of
this has been an increase in the issuing of proceedings, resulting
in busier court lists and associated delays.
What is alternative dispute resolution
Alternative dispute resolution refers to a collection of
processes which provide an alternative to our traditional court
based litigation system. These processes involve an independent
third party who will guide and assist participants in their quest
for a mutually satisfactory settlement. There are several ADR
processes available, including:
Mediation: A meeting of parties which is
facilitated by an accredited mediator who encourages communication
with a view to enabling the participants to reach a settlement.
Signed settlement agreements become enforceable contracts between
Arbitration: Facts and evidence are presented
by each side to an arbitrator who makes a determination based on
what has been submitted. The arbitrator's award is final and
binding and can only be appealed in limited circumstances.
Expert determination: Parties submit their
dispute to an independent expert (e.g. an architect/engineer).
Whether or not the decision is binding will depend of the terms of
the expert determination agreement.
Conciliation: A conciliator conducts separate
meetings with all parties in a dispute, attempting to improve
communication and lower tensions with a view to reaching a
Facilitation: A facilitator (often a lawyer)
will conduct assisted negotiations during which they use their
expertise to assist - or "facilitate" - the negotiation
of agreed terms.
Why is alternative dispute resolution preferable to
Subject to the co-operation of the ADR practitioner, parties
will have a say in the cost and
speed of the process.
The chances of a lasting agreement are
extremely high because it is reached through mutual
ADR is held in private and unless an issue in
the proceedings is referred to the courts, the details will remain
in the private domain.
ADR can be an educative process where the
parties can learn about each other's interests and
Where the dispute requires expert knowledge or experience to
understand the facts at hand, an ADR practitioner's
specialist knowledge is invaluable.
What are the drawbacks of ADR?
ADR practitioners charge a fee for their time and
ADR practitioners do not have the same full powers as a
Previous ADR awards (being private decisions) cannot be used as
precedents, making it difficult to predict potential outcomes.
How does ADR work?
Often, contracts and agreements will contain a specific ADR
clause which compels the parties to pursue disputes through
This does not mean that you can contract out of the right of
redress through the courts. However, where an ADR clause exists and
one party attempts to bring the matter to court without utilising
the specified mode of ADR, the approach of the courts has typically
been to put a "stay" (a hold) on proceedings so that
parties can use the interim to try to reach a settlement.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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