insideKENT Magazine Issue 48 - March 2016 | Page 135

LAW ADVERTISEMENT FEATURE KEEPING DISPUTES OUT OF COURT In response to rising court fees, an increasing number of people are deciding to adopt Alternative Dispute Resolution as a cost effective way to resolve a dispute, writes David Morgan of law firm Cripps. David Morgan Alternative Dispute Resolution, or ADR, refers to methods of resolving disputes without going to court. In comparison with court proceedings, parties generally have a larger degree of control over the process and can freely withdraw before a settlement is reached. They are also actively encouraged by the courts to consider ADR as an alternative to court proceedings, and cost penalties may be imposed if they refuse. Some disputes may also be suitable for referring to an ombudsman to investigate as part of a complaints procedure. There are different schemes covering areas such as financial services, legal services and estate agents. Advantages and Disadvantages of ADR The main advantage of ADR is it can be significantly faster and cheaper to resolve a dispute without long and expensive court proceedings and the associated costs. There are a number of types of ADR which may be suitable, depending upon the underlying dispute. Types of ADR Negotiation is the simplest and most flexible form of ADR. During negotiation, which could include a settlement meeting, the parties will attempt to reach an agreement on the issues in dispute, without the involvement of a third party. party. In contrast, mediation is when parties identify the key areas areas in in disagreement disagreement and explore the possibilities for resolution with the assistance of an independent mediator. The mediator will not direct direct the the parties parties or or give give aa binding decision. It is the parties who decide whether to settle the dispute, and will usually sign an agreement to make the settlement binding. Like negotiation, mediation can be used for many different types of dispute, although the additional costs of a mediator should be borne in mind. Expert determination involves referring all or part of a dispute to an expert to decide and is most suited to issues of a specialist or technical nature, such as where a professional or scientific opinion or a valuation is required. required. The expert’s expert’s decision decision is is binding binding upon upon the the parties. parties. ADR is flexible and parties can select the method that best suits their specific needs. It can also enable disputes to be resolved privately, privately, which which can can be be particularly important when dealing with sensitive personal or commercial matters. A less confrontational process can also make for easier ongoing relationships when a dispute is concluded. However, ADR may not be suitable in all situations. For example, if an individual seeks a remedy that only a court can award, award, such such as as an an injunction injunction to stop a specific action, ADR will not assist. Some forms of ADR are nonbinding and awards can therefore be harder to enforce than court orders. orders. Generally, ADR should be considered in most disputes. Courts expect parties to actively consider ADR and may impose cost penalties if they don’t. In any event, it can be more cost effective, flexible and confidential than litigation. David Morgan, Associate [email protected] 01892 5060489 In an executive tribunal, both parties appoint a representative to make a formal presentation to a tribunal. This tribunal will generally consist of a neutral third party chair wh