This is probably the most important question that any party to a dispute needs to decide. The old days of issuing court proceedings immediately are long gone unless in very exceptional circumstances. Disputes are now dealt with very differently and one has to consider whether mediation or other type of settlement negotiation would be better suited to them. Failure to do so, can result in dire consequences.
ADR (Alternative Dispute Resolution) can take many forms; mediation, arbitration, adjudication, even parties discussing their cases in an attempt to settle their differences through lawyers or in person. The reference to Alternative is that it is an alternative to Court proceedings. There are many differences in the types of ADR available but the courts have become very keen to encourage parties to consider ADR as the benefits can be summed up as follows:-
- it is more informal and amicable
- it is generally cheaper (especially if undertaken early in the dispute)
- it is more flexible in the potential outcome
The courts have set out guidelines in recent cases where the conduct of parties to a dispute will be reflected in the costs orders the courts make at the end of the case. In brief, a party who unreasonably refuses an offer to mediate, even if they subsequently won their case, can find themselves being ordered to pay their own costs and the costs of their opponent.
Parties are expected to act reasonably throughout litigation and that includes careful consideration of ADR. In some cases, the courts will order the parties to show evidence of whether they considered ADR and if not, why no and that evidence would be expected by way of witness statement, with copies of relevant correspondence for the trial judge to take into account, specifically in relation to costs orders.
Traditional phrases such as "See you in court" should now be a thing of the past but if a party doesn't act reasonably, the consequences can be very costly. |
