Alternative Dispute Resolution or as some may know it as ADR is an increasingly popular method of resolving disputes. ADR uses the services of an independent third person to assist the parties in reaching a solution that is mutually acceptable to all parties.
ADR has in recent years been encouraged as it is far less formal than courtroom proceedings, it offers more privacy since its processes and settlements are usually confidential; is cost-effective, and the parties are in control of the process and ultimate outcome.
In an ADR process, it is usual that the parties themselves choose the mediator, and will pay equally the cost of the mediation.
In today’s business court lists, it is the usual practice of most jurisdictions to require that the parties attend some form of ADR either prior to commencing any formal proceedings or during proceedings as part of the case management of any matter before the court.
Mediation
Mediation involved the parties to the dispute meeting in the presence of a person known as a mediator, whose role is to work through the dispute and in particular the contested issues to understand the most important issue to each party, and thereafter seek a compromise where each party receives an acceptable outcome.
The Mediator is neutral and does not seek to impose an agreement on the parties.
A mediator can be a barrister, retired judge, magistrate or other retired judicial officer, or otherwise professionally trained in mediation.
The form of the mediation will depend on the parties needs and requirements, and within the control of the parties. Where the parties feel comfortable, a mediation will usually start out as a “joint session” with all the parties and their lawyers in the same room. The parties present their respective points of view and might state what they are prepared to do to settle the matter or otherwise accept as a settlement.
The parties may then break away to different rooms and come back together until either a resolution can be reached or an impasse is reached that cannot be resolved.
Conciliation
The process of conciliation is similar to mediation, with the difference that in a conciliation the independent third party, takes a more active role in advising the parties and providing direction in how to settle the dispute.
Arbitration
Arbitration is the most formal form of ADR, and it resembles an abbreviated court or tribunal hearing. In essence, the parties choose an arbitrator who will decide the case, the decision being enforceable in the same way a court decision can be enforced and the parties have only a limited right of appeal from the arbitrator’s decision.
In contrast a mediator or conciliator cannot decide for the partied or bind the parties to any decision made. The parties are only bound, in a mediation or conciliation where each party signs the terms of any agreement reached.
If the parties have a written contract, the contractual terms sometimes will mandate that they resolve any dispute through an arbitration process rather than in court. In other instances, legislation will dictate arbitration as an option to certain disputes, including for instance the dispute between a builder and a home owner.
Expertise You Can Trust
Our Litigation Lawyers are able to assist and advise in resolving disputes, in the most efficient manner possible.
Our approach is to attempt and resolve disputes, if possible, before they become litigious, by applying strategies that are aimed achieve our client’s objectives, but at the same time taking into account the commercial reality of the dispute.
We have access to barristers that we engage in litigation matters, who are briefed on the basis of their experience, as required in the circumstances, taking into account the complexity of the issues and cost.
