When I joined Crane & Staples in 2013 my department was called “Litigation” and it covered any type of dispute between people and/or companies. However, we changed its name to “Employment & Dispute Resolution” to better reflect what we do. Very few people or companies want to be involved in litigation and, of course, most people who find themselves in a dispute want to get out of it as quickly as possible. Dispute Resolution is a much better title to reflect our department’s aims.
It also reflects the reality that not all disputes have to go to Court to be resolved. Litigation is the process through which a case travels through Court, potentially up to and including a final hearing or trial. This can be extremely stressful, time consuming and, of course, very expensive. Few people have pockets deep enough to take a dispute to Court and the Courts themselves, under funded and overworked as they are, are very keen for the parties to a dispute to find some other way of settling it.
Over the last few years a body of case law has developed which effectively means that if a person unreasonably refuses to engage in some form of Alternative Dispute Resolution (ADR) they may well be denied their legal costs, even if they go on to win at their final hearing. To put it another way, the Courts don’t want you to take matters to trial! Lawyers are under a duty to advise their clients about ADR.
So what other options are there? ADR can cover a range of methods for resolving a dispute, such as Arbitration or Adjudication, but by far the most popular method is Mediation.
Mediation is a process whereby all the parties to the dispute must agree to appoint a particular person to be a mediator. This mediator’s job is to try and bring the parties together to reach a deal. The mediator does not have powers to force either party to settle; mediation is all about agreement and finding a path to settlement. Although that might seem unlikely in disputes where both parties mistrust each other, or even thoroughly dislike each other, a good mediator can bring even the most hostile parties together.
Everything that is said in the Mediation is off the record and so cannot be used in a subsequent trial. It also gives the parties an opportunity to size up the other and gauge how serious they are about the dispute. In my experience, most Mediations are successful, but even the ones that do not settle on the day usually have a positive effect, where the dispute settles a short while afterwards because it has the effect of concentrating each parties’ minds. Mediation is not a cheap option but it is certainly cheaper than litigation.
In addition to all the above methods, there is still the good old fashioned “Round Table Meeting” when the parties and their lawyers get together to try and reach a deal. That can be helpful, particularly in situations where the parties are able to be civil to each other.
As you can see, an appropriate form of ADR can be a very good way of resolving the dispute without the situation exploding into acrimony and expense.