ADR can take many forms. Some forms will be familiar to everyone – negotiation through telephone calls or correspondence whereas others, such as a formal mediation or joint settlement meeting, might not be so familiar.
Overall, a more collaborative approach to resolving a dispute is taken. The parties work between themselves or through solicitors and/or a mediator to work towards a solution without the need to issue proceedings.
Disputes during uncertain times
We live in uncertain times. However, what we can say with some degree of certainty is that business, in one format or another, needs to continue.
Now, more than ever, companies will be acutely aware of disputes which may arise within the course of business. The added pressure of a dispute in a time of uncertainty is something any business would want to avoid.
At a time when the courts are having to deal with the coronavirus outbreak and are holding as many hearings as possible remotely, is now the time to be issuing proceedings in a dispute? We consider if there is another way to concluding a dispute.
What are the benefits of ADR?
ADR has many benefits. It is a process for resolving disputes which is invariably quicker, cheaper and far less stressful than the more formal route of litigation.
If you engage in ADR then the parties keep control over what the resolution is, rather than handing that power to a Judge.
Parties to a dispute invariably believe that their version of events is correct and that the other party is wrong. To ask a judge to decide the outcome for the parties is a fairly binary process. The judge will make a decision, one way or the other, within the parameters of the law and procedure.
With ADR there is far more scope to be creative and to agree something which a court could not order, provided that it is lawful. The parties are bound only by their imagination and desire to resolve the dispute. In our experience a much more favourable outcome might well be achieved if the parties work together to resolve their differences.
What does the court think about ADR?
It is worth bearing in mind at the outset that the court expects parties to consider and employ ADR before commencing proceedings. There are potential consequences for parties who fail to do this.
Can we keep working together?
ADR gives you the best chance of preserving a business relationship moving forward. It is certain that people will be unnerved in the current climate and may react differently in a dispute now, compared to how they would in normal circumstances. Understanding this and seeing your way through a dispute in a less confrontational manner, might well pay dividends in future if you can preserve the business relationship you have worked so hard to establish.
So what does solution look like?
Once you have agreed what the resolution to the dispute is going to be, you can then write that agreement down and agree that it becomes binding on the parties. There is no right or wrong answer as to what a resolution will be and every dispute will have its own unique set of circumstances.
How do I engage in ADR?
Often, people find ADR to be easier if there is a third-party involved, removing them from direct contact with the other party, at least in the immediate term. This is normally a solicitor.
The usual process is to engage in correspondence and discussions between the parties and their representatives in the first instance. If that is not successful, then alternative measures can be employed.
Normally, a mediation or joint settlement meeting is considered. Mediation, where a trained mediator seeks to assist the parties in resolving the dispute, normally takes place on an agreed date with the parties physically present at a neutral venue. This will not be possible in the current climate. However, we know that mediators are adapting and holding remote mediations. This could be by telephone or other media such as Skype. A remote mediation can and does work.
I have a dispute – what do I do now?
At Berwins, we recognise the place of ADR alongside litigation. Andrew Mawdsley is a trained civil mediator and a Deputy District Judge. He really does see things from both sides of the bench! Natasha Guest also has many years of experience in settling and litigating disputes.
We can help you through the ADR process by putting your point of view over as forcefully as is required but with a view to seeking an agreed solution. If that cannot be achieved then litigation can always follow but, now more than ever, businesses will need to work together and find a solution.
If you need us to negotiate on your behalf then we are ready to act for you – Berwins have been paperless for a significant period of time and so we have the experience to offer an agile response remotely. Please contact Berwins' Disupte Resolution team and we will help you with the way forward. The team will be happy to discuss your requirements and help you along the path to resolving your dispute.