Alternative Dispute Resolution is a key part of modern litigation. More and more courts expect litigants to have at least considered the use of ADR to resolve their disputes at an early stage in the process of litigation. The reasons are not hard to find. First, resolving a dispute by ADR takes a case or claim out of the court system, and reduces pressure on busy courts and a hard-pressed judiciary. That often means that going down the ADR route is quicker than leaving a case to work its way through the court system. And because it is quicker, there can be a significant saving in costs; as everyone knows, a trial in court (even for a one-day or less trial) can cost a lot of money. So ADR offers the potential for a healthy costs saving, too.
What is ADR?
ADR encompasses several different approaches to resolving a dispute. It works across the spectrum of civil claims and for a long time has also been the approach of choice in family law cases, where one of the key features of ADR – that of reaching a result by agreement between the parties rather than having a judicial decision made in court and then imposed upon the parties – can leave all involved feeling that they have obtained something out of the dispute.
Mediation is probably the most common form of ADR. This involves the parties agreeing to engage an independent person to act as a facilitator (or in some cases an evaluator) who helps each party to consider its own position and that of the other side, in order to identify the real heart of the dispute and thus to explore whether there is any room for compromise and resolution. This process helps parties avoid becoming “trapped” in the court-based litigation process, with all the sometimes lengthy delay and cost which that involves.
Mediation has now been in increasing use for resolving disputes for more than two decades, and there can be no doubt that it works. A mediator does not make a decision in any dispute; it is up to the parties concerned whether they can agree a resolution (or not). Mediation is a confidential process. Anything said in the course of a mediation cannot generally be then relied upon if the dispute ends up going to trial. A compromise reached in mediation is only binding when it is recorded in a written mediation agreement, at which point it assumes contractual force.
Arbitration is not the same as mediation. In an arbitration, which may be a requirement built in to commercial contracts, or agreements involving professionals such as surveyors or insurers, an independent person to act as arbitrator is appointed by agreement between the parties. The arbitrator listens to argument and submissions from all the parties involved, and then produces a decision which the parties have agreed is to be binding upon them.
Arbitration can be likened to a trial but without a Judge and without going through a full-scale court process. Before an arbitration takes place, arbitrators will often issue directions to each side about procedural steps which need to be taken such as the preparation of witness evidence or the production of an arbitration bundle of documents.
Early neutral evaluation is also part of the ADR approach. Here, an independent person is appointed by agreement between the parties. That person then looks at, or evaluates, the case being put forward by the parties and reaches a view as to the relative merits of each party’s case. That view is communicated to those involved, so that they have an independent assessment of the strength or otherwise of their case in the dispute, and can then make decisions as to the best way forward.
How Three Stone can help
All members of Three Stone are thoroughly accustomed to advising and appearing for parties who are looking at using ADR to resolve their dispute, or who have already agreed to become involved in mediations, arbitrations or neutral evaluations. In all cases, we are very willing to travel from London to locations both within the UK and also overseas.
As well as acting for parties contemplating or about to participate in ADR, some members of Chambers are also trained to act on appointment as mediators, and regularly accept instructions to act in that role.
The following members of chambers are accredited mediators, having been trained at CEDR, ADR Group or ADR Chambers and are available for appointment to act as mediators in any dispute arising within their practice areas (for which, see individual members’ web pages on our website):
Individual members have been engaged in some most substantial arbitrations in recent years. Our involvement includes English, European and international procedures, with a substantially increasing practice in Anglo-American proceedings conducted in the US, the UK, and elsewhere around the world. Members also act as experts on English law in alternative dispute procedures conducted by foreign lawyers.
The following members of Chambers are available to sit as arbitrators, adjudicators or in expert evaluations in any dispute arising within their practice areas:
Because Three Stone is based within Lincoln’s Inn in London, we are well able to make suggestions for – and arrange the booking of – suitable facilities which are available for mediations or other forms of ADR involving members of chambers as mediators or advocates. For larger events, including those which may run for more than one day, we can certainly find appropriate accommodation, whether in Central London or elsewhere throughout the UK.
Please contact our clerks for further details about the ADR services which we can provide or for more information about members or facilities for any specific case..