ADR is the generic term for legal dispute resolution by any means other than formal litigation (going to court). The advantages of ADR are that it is normally quicker and cheaper than litigation. However, ADR is not a panacea: there will be occasions when litigation is a more sensible alternative.
The most common forms of ADR (other than pure negotiation) are:
Mediation, Arbitration and Adjudication
Mediation is the term used to describe a process whereby a qualified mediator helps the two sides in a dispute to reach a negotiated resolution. The courts now require an attempt to be made to mediate most disputes before the parties resort to formal court proceedings. If the mediation attempt fails, litigation remains a possibility.
In an arbitration, an arbitrator is appointed to collate the evidence provided by both sides in the dispute and make appropriate enquiries. A binding decision is then handed down.
Used extensively in construction contracts, where the legal issues can be complex, adjudication is essentially similar to arbitration, but in this case a recognised adjudicator is appointed and considers the legal arguments presented by the parties to the dispute.
Construction disputes normally take place in the context of standard contractual arrangements, which often specify the means by which different sorts of disputes are to be resolved.
In any arbitration or adjudication process it is important to ensure that the expert engaged is clearly briefed on the subject matter of the dispute and is aware of the limits of his authority ('jurisdiction' in legal terminology). In general the courts will robustly support the decisions of arbitrators and adjudicators who stick to their brief and do not exceed the limits of their jurisdiction.
Case study 1
When business partners fell out, they decided the best way forward was for one of them to buy out the other. Predictably, their valuations of the business differed very substantially. Litigation would have been time-consuming and expensive and by using a mediated dispute resolution process, the dissolution of their relationship was carried out quickly, at low cost. The absence of a time-sapping dispute process also ensured that the business could continue without pause, maximising the value received by both of the former associates.
Case study 2
When a construction dispute adjudication did not go the way one of the parties wanted it to, the failure of their opponents to set out their case fully meant that they were able to launch a second adjudication, an action that was backed by the court.
Selachii are expert at this and making sure our clients' interests are strongly argued in any submissions we make.
Purely commercial disputes are often resolved by negotiation or mediation, unless a principle of law is engaged.
How Selachii Can Help
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