Alternative Dispute Resolution also known as ADR, is a common but less used method to resolving issues. It is important to note that Law is one method of resolving disputes when, as is inevitable, they emerge. Law is a formal dispute resolution mechanism because society and people have made it complex; thus there has to be mediation and rules in place to resolve issues.
The Court will involve itself to make a fair, balanced decision to all parties. However you will notice below, that the Court is providing the ADR is a mean to resolve the issues rather than involve the Courts. It is somewhat forcing both claimant’s and defendant’s to discuss and come to an agreement.
Let’s start by considering the legal framework which sets out the policy:
Alternative Dispute Resolution
9. The courts take the view that litigation should be a last resort. The parties should consider whether some form of alternative dispute resolution (‘ADR’) or complaints procedure would be more suitable than litigation, and if so, endeavour to agree which to adopt. Both the claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered. Parties are warned that if the protocol is not followed (including this paragraph) then the court must have regard to such conduct when determining costs. However, parties should also note that a claim for judicial review should comply with the time limits set out in the Introduction above. Exploring ADR may not excuse failure to comply with the time limits. If it is appropriate to issue a claim to ensure compliance with a time limit, but the parties agree there should be a stay of proceedings to explore settlement or narrowing the issues in dispute, a joint application for appropriate directions can be made to the court.
10. It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation which may be appropriate, depending on the circumstances—
Discussion and negotiation.
Using relevant public authority complaints or review procedures.
Ombudsmen – the Parliamentary and Health Service and the Local Government Ombudsmen have discretion to deal with complaints relating to maladministration. The British and Irish Ombudsman Association provide information about Ombudsman schemes and other complaint handling bodies and this is available from their website at www.bioa.org.uk. Parties may wish to note that the Ombudsmen are not able to look into a complaint once court action has been commenced.
Mediation – a form of facilitated negotiation assisted by an independent neutral party.
11. The Civil Justice Council and Judicial College have endorsed The Jackson ADR Handbook by Susan Blake, Julie Browne and Stuart Sime (2013, Oxford University Press). The Citizens Advice Bureaux website also provides information about ADR: http://www.ad viceguide.org.uk/england/law_e/law_legal_system_e/law_taking_legal_action_e/alternatives_to_court.htm.
Information is also available at: http://www.civilmediation.justice.gov.uk/
12. If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate in ADR or refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.
The above provides a clear framework as well as consequences if the above is not followed and either the claimant or the defendant can be penalised failing to discuss and put forward their reasons to maintain their views. If a party fails to consider ADR, even if they win the case before the Judge, costs may not be awarded to them, simply because they failed to justify their reasoning on not using ADR as a resolution.
In the case of Cowl v Plymouth City Council (2001), the Court of Appeal, with Lord Woolf as a member of the panel, made it perfectly clear that lawyers from both parties are under a heavy duty only to resort to litigation if it is unavoidable and the dispute cannot be settled by some other non-court based mechanism.
In the case of Kinstreet Ltd v Belmargo Corp Ltd (1999), the Court actually ordered ADR against the wishes of one of the parties to the action.
The above gives us guidance’s that skilled mediators are now able to achieve results for both claimants and defendants, which is sometimes cannot be achieved through the Court or sometimes the Lawyers representing both sides.