Alternative Dispute Resolution

Basically alternative dispute resolution or ADR for short is all other forms of dispute resolution other than court proceedings.

The civil procedure rules encourage the parties to use ADR to resolve their dispute without the need for court action. You will also find that the judge will do the same.

Although it is less so with small claims court cases, there are cost consequences for not cooperating in the use of ADR.

Nothwithstanding it is usually still in the parties interests in any event to explore ADR to resolve their dispute as it can often result in a saving in time and money. Furthermore, it si more likley, is so desired, that a relationship can be maintained by using ADR rather than court proceedings.

The main forms of ADR are:

• Without prejudice discussions or meetings - this is where the parties can speak openly in the knowledge that anything discussed or written which is marked as without prejudice cannot be referred to by the court. This allows parties to speak more freely and perhaps give or agree concessions with a view to a settlement being agreed;
• Mediation - this is where the parties appoint a mediator to see if she/he can broker a settlement between them. This is process is without prejudice (see above) and the mediator is not there to either give advice or make a decision. A settlement at mediation only becomes binding once both parties have signed a written settlement agreement;
• Expert determination - this is where the parties agree to an expert making a detemination on the dispute. The parties can agree for this to be binding i.e. it is final or non-binding, in which case there would be nothing to stop either party continuing the dispute if they did not like or agree with the determination;
• Early neutral evaluation - similar to expert determination although this is an evaluation only and therefore not binding. To undertake this, if the issues are of a legal nature you could appoint a retired judge or if they are of a technical nature e.g. faulty goods, you could appoint an expert in that field