Alternative Dispute Resolution

Specifically referred to in CPR and the court must encourage parties to use ADR if the courts considers it appropriate (CPR r1.4(2)(e)).

Advantages and disadvantages of ADR 

Advantages:

• Speed
• Flexibility
• The client can withdraw at any time
• Preserves business relationships
• Privacy
• Cost

Disadvantages 

• Enforceability of awards
• Limited disclosure 
• The opponent can withdraw at any time

Negotiation

In which parties or their lawyers discuss possible solutions to the problem, may occur either face to face or by correspondance. This is done "without prejudice"  which means that the subject matter of those discussions is not revealed in any subsequent litigation if the discussions are not successul, allowing the parties to negotiate freely.  

Advantages

• It can be done at any point in the process, that is, before and/or during the litigation process;
• The parties can walk away at any time;
• It may avoud the need to bring proceedings or attend trial;
• The outcome is usually confidential and private;
• Avoiding litigation may preserve the relationship of the parties if it is an ongoing one.

Disadvantages

• There are possible representation costs in without prejudice meeting; 
• The demands of the other side, particularly litigants in person, may be unrealistic, hampering process. 

Mediation

The parties and an independent mediator gather at a neutral venue. Initially, the parties will outline their dispute to the mediator in the presence of the other side. After this, the parties seperate into private rooms and the mediator will speak to each, often repeatedly, to try to reach a solution. If the parties reach and agreement, it is written down and will be binding. 

Advantages

• The parties agree a resolution of their choice allowing wider scope than that of the courts;
• This tailored "win-win" result compares favourably with the adversial "win-lose" outcome of litigation and enables the parties to continue their relationship on a positive footing; this particularly important in a business relationship;
• The parties can walk away at any time;
• The mediator is indpendent and neutral;
• it is a confidential process;
• it is quicker and cheaper than litigation;
• The parties cannot use information obtained in mediation in court as it is without prejudice.

Disadvantages

• Hiring a mediator can be costly, even though the parties generally split the costs;
• The parties must pay their own costs of attending;
• The other party may not share…