Frequently used in both commercial and private law cases, the meaning of dispute resolution is not difficult to imagine.
In its most basic form, the term refers to any method used to resolve a dispute of any kind between two parties. At www.oraclelaw.com, we provide legal advice for all forms of ADR, including expert representation in arbitration cases.
What becomes slightly more complicated, however, is that there are many different forms of resolution to consider, each of which has its own range of factors to consider including cost, speed of outcome, obligation, and confidentiality.
These are the various forms of dispute resolution that are most commonly used in the UK:
Pre-action discussions
Resolving a dispute before any formal process has begun is by far the most cost-effective approach for all parties involved.
This is known as pre-action meaning that both parties are committed to finding an agreement to their issues without pursuing litigation or any more formal proceedings.
Pre-action discussions will usually involve parties meeting together either with or without legal representation to discuss the details associated with the case and attempt to find a middle-ground.
It is not a requirement to have a solicitor in place for pre-action discussions but if one party does have legal representation it is recommended that all other parties involved also seek expert advice before agreeing to any resolution.
If it is at all possible for a dispute to be settled in this manner it is highly beneficial for all parties as they will save a huge amount of money on court fees and arbitrator/mediator fees as well as not having the issue hanging over their heads for months on end.
Mediation
Mediation at its core is a process where parties come together with an independent third party present to attempt to resolve a dispute.
For mediation to be successful, both parties must engage fully in the process including doing preparatory work, and will be bound by any agreement that comes as a result.
During mediation documents will be shared and presented by both parties and any verbal and written communication will remain completely confidential and cannot be used as evidence should the case go to court or arbitration in the future.
Mediation is a much less formal version of litigation or arbitration whilst still resulting in a legally binding settlement agreement.
The role of the mediator themselves is to simply facilitate discussion and they have no power to make decisions and should not push for a certain outcome.
If a settlement agreement is made through arbitration, only for one of the parties to fail to comply, it is possible for legal action to be taken against them.
Given that mediation agreements are the result of extensive negotiation and both parties must agree to the resolution before it becomes binding, however, in the vast majority of situations, both parties will comply with the settlement made.
Arbitration
Arbitration is a more formal form of dispute resolution than mediation or pre-action discussion.
The process of arbitration is actually very similar to litigation with the main difference being that findings will be made much faster than would be the case if the dispute went to court.
All the parties involved in a dispute will submit details of the case to an independent arbitrator who will examine all the documents and details of the dispute before delivering their decision.
Unlike litigation, arbitration is private and confidential meaning that is often the preferred method in commercial settings where companies wish to keep private issues private.
If you are entering into arbitration, it is wise to have a solicitor representing you as the formal process of compiling and disclosing evidence is complex and mistakes could be detrimental to your chances of achieving a satisfactory outcome.
Arbitral awards are legally enforceable in the same way as a court judgement would be and can only be overturned through litigation.
Litigation
As a final resort, where alternative methods of dispute resolution have proved unsuccessful, the only way to resolve a dispute may be through the formal process of litigation.
Litigation involves utilising the civil legal system to resolve a dispute through the courts.
The limitations of this method include the high cost of taking a case to court and a complete lack of control over the time-scale involved.
When preparing for a litigation case your solicitor and you will be required to abide by a strict set of guidelines set out by the court which will dictate deadlines and required actions of each party leading up to and during the court date.
Whilst it is possible to represent yourself in a litigation case, it is highly recommended that you use a dispute resolution solicitor to guide you through the complex legal process and represent you in court.
Unlike other dispute resolution methods, legal proceedings are not private, and this is something to consider before proceeding with the case.