What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR), also known as mediation, is a process of settling disputes before they reach the courtroom. A neutral party, or ‘mediator’, is tasked with acting independently to help both parties come to a mutual agreement, or ‘settlement’.
Why should I go through mediation if I think I can win in court?
It is often the case that one party in a dispute is so confident that they will win the case that they don’t see the point in trying to ‘make peace’ with their opponent before going straight to court. They may therefore refuse to mediate even if they are invited to do so. However, back in 2004, the Court of Appeal decided that Halsey‘s refusal to participate in a mediation with Milton Keynes General NHS Trust prior to the case as unreasonable conduct, which could be penalised. This means that even those that are successful in court may not be able to recover legal fees.
Now, a landmark commercial property case (Briggs LJ PG11) has considered for the first time how the court should respond to a situation in which one of the parties simply declines or ignores an invitation to take part in ADR. This means that mediation is now so closely tied to the court’s approach to the recovery of costs that they are inseparable. Bringing in a mediator to settle business and property disputes is therefore now more important than ever to avoid costly legal battles.
Why is mediation now so important in business and property disputes?
This new case means that it is more important than ever for businesses and their advisers to look carefully at how their company or organisation is set up to avoid disputes, or at least have processes in place for mitigating and effectively managing them if push comes to shove. Not initiating mediation or declining to take up an offer of mediation will almost always be considered unreasonable conduct by the court, leaving businesses and property owners exposed to the risk of being crippled by legal costs. Business and property disputes are common and often can’t be avoided. However, using ADR, they can be carefully mitigated and managed so that neither party is seen to be wasting the court’s time. This brings both a reputational as well as financial benefit, not to mention the time and stress that can be saved by keeping disputes out of court.
How do you instruct a mediator?
A mediator must be a completely neutral, impartial party who is instructed by both parties in a dispute. As an Accredited Mediator, I have a professional duty to act completely independently, whichever party I am instructed by. My goal is to find the best outcome for all, ensuring that clients can avoid the pitfalls of getting dispute avoidance/management wrong, and protect themselves from potentially costly legal fees.
Please don’t hesitate to contact me to talk about the best way to approach Alternative Dispute Resolution.