UK: Alternative Dispute Resolution

ADR is an umbrella term for a number of alternative settlement processes. Because of the flexibility of ADR and its consensual nature, the number of different types of ADR procedure is limited only by the nature of the dispute and the imagination of the parties. However, the most important and most commonly used ADR procedure is mediation.

Mediation is a confidential procedure involving a neutral third party who facilitates structured settlement negotiations. Common features of mediation are:

• The party’s will usually be represented at a formal mediation hearing by their legal advisers and a representative from the party’s organisation with authority to reach a settlement
• Each party will make a short presentation of their case to the mediator with all parties present
• The parties withdraw to separate rooms and the mediator will explore with each party, often in several individual sessions, the issues arising in the case and the basis upon which that party might settle. In doing so, the mediator may point out the strengths and weaknesses in the party’s case as perceived by the mediator
• Having considered the basis of a possible settlement between the parties, the mediator would ordinarily call the parties together to propose possible terms of settlement. If terms are agreed, the mediator may assist the parties to draw up the terms of settlement

Mediation procedures can be used in many different types of disputes. For example, they can be used to settle a small value dispute which does not justify the expense of litigation. Alternatively, mediation can be used for high value disputes which require speedy, confidential and commercial solutions.

Mediation is not appropriate in every case. In some cases there is a legal principle which requires determination by the court, or one party needs the urgent protection of a court order.

• Statistically, mediation has a high success rate
• Mediation can be arranged to suit the parties’ requirements. If mediation is required quickly, it can be organised within a matter of days
• Mediation at an early stage can save the costs for both parties of litigation and the disruption which can be caused by the formal processes of court action
• Mediation is a confidential process and, if the parties reach a settlement, it is open to them to incorporate a confidentiality clause. Because the mediation is held in private, there is little danger of adverse publicity or commercially sensitive information being revealed in court
• Mediation offers the option of a commercial settlement of a dispute rather than a court imposed determination eg re-negotiating the terms of a contract
• Because mediations are held on a ‘without prejudice’ basis, anything said or revealed in the course of the mediation cannot later be relied upon in court

• If the mediation is not successful, costs and time can be wasted
• Mediation involves a commitment from the parties - it is only likely to be successful where both parties approach it constructively
• An attempt to resolve cases by mediation can result in a delay in progressing court proceedings

The selection of a suitable mediator is critical to the chances of the mediation succeeding. There are a number of organisations which will provide mediators in a wide range of disciplines. These include the ADR Group, the Centre for Dispute Resolution (CEDR), the Royal Institution of Chartered Surveyors and the Law Society. Some trade organisations also offer mediation as well as arbitration schemes to members.

Once the parties have agreed that it is appropriate to refer a problem to mediation, the agreed mediation body can nominate a number of possible mediators for the parties to consider. The selection of the mediator will depend principally upon the nature of the dispute. In some circumstances it will be appropriate for the mediator to be a solicitor or a barrister or, for example in a dispute over a building contract, a surveyor.

Mediators will usually be accredited by the organisation they belong to and will have undergone appropriate training to ensure they are competent as mediators.

Mediation does not replace ‘without prejudice’ discussions which are normally ongoing throughout a dispute. In many cases where the issues are clear, or where the parties take a commercial approach to the dispute, there will be no need for a mediator to facilitate discussions. Mediation, however, can assist where there is no clear solution to the dispute or where the involvement of an independent mediator will encourage the parties to address the prospects of settlement.

It is only when the parties have reached an agreement, normally set out in writing with the assistance of a mediator, that the parties become bound to the terms of settlement. Up until an agreement is reached, either party is free to withdraw from the mediation and to continue with court proceedings. Once an agreement is reached, it amounts to a contract between the parties which can be enforced through the courts.

Mediation should be considered in most cases. Whilst it is not appropriate for all disputes, the cost of mediating a dispute is often a worthwhile risk, bearing in mind the potential benefits of avoiding the cost and disruption of litigation.

This information is necessarily brief and it is essential that professional advice is sought before any decision is taken