Alternatives to Litigation – Alternative Dispute Resolution

Poole Alcock are Cheshire based solicitors whose litigation team advise and successfully represent clients on a wide range of disputes. Here we look at the merits of Alternative Dispute Resolution (“ADR”) and it’s various forms.

ADR is a common function of the Litigation process and usually undertaken in the following forms:

• Adjudication
• Early Neutral Evaluation
• Expert Determination
• Mediation
• Adjudication
• Adjudication is commonly used for construction matters relating to
• Interim payments.
• Delay and disruption of the works.
• Extensions of time for completion of the works.
• The final account.

Before commencing Adjudication a party should:

• Consider whether the dispute has crystallised. This means whether or not the dispute has been set out in detailed correspondence with the intended respondent, making it clear what is being sought and the basis of the respective claim.
• Ensure that the dispute has been defined in a notice which sets out the key areas of dispute by the referring party. Unless the contract allows more than one, include only one dispute.
• Adhere to the contract’s time limits.

In construction disputes there is a statutory right to adjudicate. Parties are unable to contract out of this right and a party to a construction contract has the right to refer a dispute to adjudication at any time.

An adjudicator’s decision is binding on an interim basis and/or is binding on the parties until the dispute is finally determined. This can be via legal proceedings, arbitration or by agreement.

The Construction Act 1996 provides for 28 days between the referral to the adjudicator and the adjudicator’s decision, although that period may be extended by agreement.

Early Neutral Evaluation

Early Neutral Evaluation (“ENE”) is usually a non-binding process undertaken on a Without Prejudice basis where an independent and impartial evaluator is appointed to give the parties an opinion on the merits of the matter.

Recent court decisions have endorsed the use of ENE where both parties have differing opinions on merits, legality and technicalities. In some cases ENE can be used prior to the parties engaging in mediation.

Mediation is discussed further below.

Expert Determination

Expert Determination is the process whereby both parties agree to appoint an independent expert to determine points. This is usually in relation to specialist and/or technical disputes.

Expert determination is not commonly used where disputes involve purely legal disputes or require the consideration of voluminous documents and are often contained within contracts.

An example of where you may find such a clause is in a contract for the sale of goods. For instance, where an expert opinion is required to demine whether or not the item is to the required standard.

Some of the benefits of Expert Determination are:

• •That it may be cheaper, quicker and less formal than other forms of ADR.
• •That it helps the parties to maintain business relationships (it is confidential and generally less adversarial than litigation or arbitration).

However, an expert can only give a valid opinion/determination within the realms of his/her competency and there are no general rules to govern this procedure.

For instance, an expert is unable to compel a party disclose documents or provide witness evidence.

Mediation

Mediation is one of the more common forms of ADR.

This process usually involves a third party (a mediator), appointed by both parties, who is attempting to facilitate an agreement to resolve the respective dispute.

Mediation often involves both parties, accompanied by the legal representative(s), meeting at a chosen venue, usually at a firm’s office or, in neighbour disputes, at both respective properties with the mediator walking between the properties.

Often the parties will be kept in separate rooms where they can discuss between themselves and then ask that the mediator relays message/requests/offers to the opponent.

All of these discussions usually take place on a Without Prejudice basis. This in essence means that whatever is discussed at the Mediation is confidential from the Court until otherwise stated.

Mediations often last for a full day.

Ombudsman

The number of ombudsmen has grown over recent years and cover a wide range of services and industries. Contacting an ombudsman may also proved to be an effective form of ADR.

Next Steps

Our specialist litigation team will be happy to discuss with you and explain how ADR may be of help in resolving your dispute – whether for you or your business. For more information visit our divorce and family law page.