Sometimes, if it is handled sensitively and positions are not too entrenched, a dispute can be dealt with by a straightforward negotiation. This is normally so when the sums involved are not large.

In these cases the resolution may be as simple as making a legal agreement or varying a contract.

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.

Mediation is the term used to describe a process wherein 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 to 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, 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.

Purely commercial disputes are often resolved by negotiation or mediation, unless a principle of law is engaged.

See our further information on ADR.

Litigation is the long stop of any dispute, and can also be the outcome of a flawed arbitration or adjudication process.

Even where the dispute is being dealt with by litigation, it is not normally necessary to have to go to court. More often than not, such disputes are settled by way of the negotiation of a settlement that is acceptable to both sides.

If the dispute does go to court, there are three basic essentials which have to be proven:

• Did the defendant cause the loss or damage being claimed?
• Did the defendant owe the claimant a duty of care?
• Was the loss foreseeable?

If these are proved, then the claim can proceed and the amount of damages (which often involves protracted negotiation and the use of expert evidence) can be dealt with.