Michelle Hayter, a Solicitor in our Dispute Resolution Team, is often asked why firms of solicitors now refer to their department as Dispute Resolution, as opposed to a Litigation Department.
In response, Michelle says “The truth can be found in the meaning of the word ‘litigation’ which, in essence is to take legal action through the Courts. When people or businesses find themselves in the position of being in a dispute and needing to take advice from a solicitor the first thing that most solicitors will consider is how the matter can be resolved outside of Court. This is because going off to Court is likely to be the slowest and most expensive way of resolving a dispute, not to mention the uncertainty as to the outcome.”
With that in mind, whilst sometimes matters do have to end up in Court, the reality is that the actual primary objective in most cases is to resolve the dispute as quickly and cost effectively as possible, therefore the term Dispute Resolution is a much more accurate description of what solicitors specialising in this area do on a day to day basis.
Types of Dispute Resolution
The process of resolving disputes outside of Court is commonly referred to in the legal profession as Alternative Dispute Resolution (ADR) but what does this mean?
All this really means is the method that we adopt to resolve a dispute, usually, in civil disputes this will be one or a combination of the following:
- Negotiation
- Mediation
- Arbitration
- Collaborative Law – Only available in family disputes i.e. divorce
The starting point for solicitors when instructed to advise upon a dispute will almost always be negotiation as this is the simplest, quickest and most cost effective way to conclude a dispute without going off to Court. It also gives the parties the opportunity to have their case considered and put forward by their respective solicitors who will advise them on the merits of their case and their opponents so that a balanced and commercial view can be taken which will encourage out of Court settlement.
Often at this point the realisation is that both parties have strengths and weaknesses in their case and the uncertainty and cost of going to Court simply isn’t worth it so a settlement can be negotiated from that platform.
If negotiation doesn’t work then it falls to the parties’ solicitors to advise them as to whether it would be appropriate to consider mediation or arbitration before issuing a claim through the Courts. Mediation is more commonly used in individual disputes such as disputed wills and small commercial disputes whereas arbitration, where the parties will present their evidence and an arbitrator will decide who is the winner and who is the loser, is more commonly seen in commercial and large construction disputes where provision is made contractually for an arbitrator to be appointed in the event of the dispute.
The right method of ADR will be different for every case but in almost every case now the Court’s do expect the parties to have attempted to resolve their dispute outside of Court prior to issuing a claim so fail to do so at your peril.
If you have a dispute, how can we help you?
Whatever the nature of your dispute, whether you are an individual or a business, as specialists in Dispute Resolution we can advise you on the merits of your case and your opponents, what costs you are likely to incur and assist you in resolving your dispute whether through ADR or litigation through the Courts.
Most disputes can be resolved outside of Court but getting the right advice at an early stage is absolutely vital. To assist with this, we offer a free, no obligation initial meeting.
For a free initial chat, please call 01202 499255 and Michelle or a member of his team will be happy to discuss any questions that you may have.
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