Are there other types of dispute resolution except for litigation?

What is dispute resolution?

Dispute resolution is a method of resolving disputes which you may have between yourself and some other party. There are several methods of dispute resolution; all of them have some advantages and disadvantages. Before you proceed to litigation you should consider those other types which in effect may represent a cheaper, faster and the most effective way than expensive litigation.

Litigation

You decide to instruct a solicitor to act for you and on your behalf in a certain matter. A solicitor will lodge all necessary applications at the court and will fight for your case. The case will move to the court and a solicitor will make sure you get legal representation. Litigation is therefore a procedure at the court whereby the court or a judge decides the outcome of the matter concerned. Litigation can be civil (to resolve civil matters) and criminal (to resolve criminal matters). Civil litigation procedures are governed by Civil Procedure rules which have to be followed. Criminal is governed by Criminal Procedure Rules.

Arbitration

Is a type of dispute resolution used generally in commercial disputes. The parties usually agree that all disputes which will arise in relation to a certain matter will be resolved by arbitration. This will normally be set up as an agreement or contract in the from of an arbitration clause. It is common that the governing law of contract may however be different as the law under which arbitration will be resolved. Arbitration is a more private form of dispute resolution as opposed to the court where the hearing often takes place in the public. Therefore also all documents relating to arbitrated matter are confidential. The parties will usually choose the arbitrator how is often an expert within a specific field. The parties can organise the sittings themselves they are not bound by the dates as opposed to the court. Arbitration award can sometimes be easier to enforce and the decision is binding. Criminal matters are not usually resolved by arbitration. The most common contracts which contain arbitration clause are engineering, construction matters etc.

A person who conducts arbitration is an arbitrator and he is often also called a tribunal and he should be addressed as Sir or Madam. Arbitration may sometimes be called a reference. The parties’ names to arbitration are the Claimant and the Respondent. Arbitration is governed by the Arbitration Act 1996. The Act gives the arbitrator guidelines on how to conduct arbitration, namely to be impartial and fair, to try to avoid expense and delay an in all the circumstances to try to provide fair means for the resolution of the matters. Some of the procedures in the Act are not mandatory; they only apply if the parties fail to adopt their own procedures themselves. There are two types of arbitration, namely institutional and ad hoc arbitration.

Institutional Arbitration

The parties may agree to appoint an institution to appoint arbitration. Such arbitral institution however charges a fee and the parties are often forced to use the procedures of the institution and they are not free to adopt their own during arbitration proceedings.

Ad hoc arbitration

It is a type of unadministered arbitration where parties decide to appoint  arbitrator or a tribunal themselves which is cheap, effective but may not be ease as each party may have their own tribunal. There is a set of rules which has to be adopted if the parties do not agree on the appointment of the tribunal, the rules then intervene. (These are the rules created by United Nations.)

ADR Alternative dispute resolution

This method of dispute resolution encourages settlement between the parties and there are several methods.

Mediation

Is another method of dispute resolution through a medium of an impartial third party who is called the mediator? The mediator’s decision will not be binding on any of the parties as opposed to  litigation , where the judge hears the case,  makes a judgement, imposes order or decision which is binding and has to be complied with  unless you want to find yourself in contempt of court. The mediator’s decision however has no such power it is up to the parties to decide whether to accept his decision or not. Mediation is however confidential and any of its contents will not be made known to the court. In order to increase the chances for settlement, some contracts often contain mediation clauses. These will require resolving any disputes which arise from that particular contract by mediation in order to preserve and reach settlement.

Med-arb

Is a method whereby mediation is initially agreed but if there is no satisfactory resolution the parties agree that the mediator becomes the arbitrator and will make a final decision which will be binding upon the parties. This method is rare in the UK.

Expert determination

The parties will agree to appoint an independent expert who will determine the resolution. There will be a contract between the parties and the expert. The expert’s decision will be binding however he will have no power to impose costs orders unless this power was granted to him by the contract. This method is more common for commercial agreements and is more suitable for technical issues however there still is an issue with respect to the credibility.

Case evaluation

The main actor is a neutral evaluator who will determine the issue. He may consider submissions also hear witnesses but the decision will not be binding. This method is particularly good where there are different strengths of the case from the point of view of the parties. 

Early neutral evaluation

This is mostly recommended by a commercial court. A judge or QC will meet with the parties in the early stage of the progress of the  matter and will give independent and neutral evaluation as to what he thinks about the matter.

Mini trial 

A panel will meet to hear the case and then encourage the parties to negotiate.