Dispute Resolution

Chapter 1

What is Alternative dispute resolution?

• Refers to any method of resolving disputes outside the normal trial process

• Negotiation is form of ADR before litigation

• Arbitration and Mediation

What is the Nature of ADR? Are mediation and arbitration voluntary?

• Mediation is voluntary in nature as the parties choose to mediate and can withdraw at any time before a settlement is reached, even if the other party objects.

• Arbitration is voluntary in the sense that parties either entered into an arbitration agreement before dispute arose or agreed to resolve thereafter

• Where an agreement exists, if one party commences court proceedings, the other shoulf acknowledge service

• Litigation is not voluntary

Is there an independent third party?

• Yes, it is common in ADR processes except in arbitration, they cannot impose a solution

• Advantage is third party will not only be neutral but have the appropriate industry or commerical knowledge required to understand the dispute

Failure to engage with ADR

• Litigation should be last resort and ADR should be explored first

• Failure to repsond to reasonable proposal to attempt settlement by ADR or refusal to participate in ADR may result in cost sanctions

What is in the directions questionnaire?

Solicitors are required to confirm within this document that theu have explained to the client that

a. they need to try to settle

b. the options availanle

c. the possibility of costs sanctions if they refuse to attempt to settle