Dispute Resolution19 Nov 2018 16:10
Dispute resolution, in its widest sense, includes any process which can bring about the conclusion of a dispute. Dispute resolution techniques can be seen as a spectrum ranging from the most informal negotiations between the parties themselves, through increasing formality and more direct intervention from external sources, to a full court hearing with strict rules of procedure.
Alternative Dispute Resolution is a commonly used term to include a range of processes which involve the use of an external third party and which can be regarded as an alternative to litigation. There is some debate as to whether arbitration is or is not a form of ADR. For the purposes of the Government pledge arbitration is a form of ADR. Negotiation and litigation are not forms of ADR. However, there is now some cross-fertilisation between litigation and ADR in that the Pre-action Protocols recently introduced into litigation, and intended to codify and streamline the pre-action conduct of the parties, emphasise the importance of parties taking steps to achieve a settlement where possible before issuing proceedings, whether by ADR or other means. A further example of helpful cross-fertilisation between procedures is that it is now becoming fairly common for parties to arbitration proceedings to agree to mirror relevant provisions of the Pre-action Protocols in those proceedings.
Dispute resolution techniques include:
• Negotiation – the most common form of dispute resolution where the parties themselves attempt to resolve the dispute.
• Mediation – a private and structured form of negotiation assisted by a third party that is initially non-binding. If settlement is reached it can become a legally binding contract.
• Conciliation – as per mediation, but a conciliator can propose a solution.
• Neutral evaluation – a private and non-binding technique whereby a third party, usually legally qualified, gives an opinion on the likely outcome at trial as a basis for settlement discussions.
• Expert determination – a private process involving an independent expert with inquisitorial powers who gives a binding decision.
• Adjudication – an expert is instructed to rule on a technical issue – primarily used in construction disputes as set out in the Housing Grants, Construction and Regeneration Act 1996 where awards are binding on the parties at least on an interim basis, ie until a further process is invoked.
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