Dispute resolution
,ADR
• If the client is willing (or has already agreed) to participate in ADR, it should be used unless:
1. it is obviously inappropriate, for example because an injunction is required;
2. the other party is unlikely to co-operate in the process; or
3. the other party cannot be trusted to comply with an award.
• If a party refuses an ADR proposal from the other side, they must submit a witness statement with
days, explaining their reasons. However, this statement must not be disclosed to the trial judge un
issue of costs is addressed.
• The case of Churchill v Merthyr Tydfil established that courts now have the lawful authority to
(suspend) proceedings or even order parties to engage in ADR. However, such an order must not unde
the C’s fundamental right to have their case heard in court. The requirement is that the order mu
proportionate, ensuring that it serves the legitimate goal of resolving the dispute fairly, efficiently, an
reasonable cost.
• Failure to do so financial sanctions
,• During the course of the court proceedings the parties complete what is known as a direc
questionnaire and, to ensure that clients are fully aware of the importance and implicatio
ADR, solicitors are required to confirm they have explained to their client:
(a) the need to try to settle
(b) the options available; and
(c) the possibility of costs sanctions if they refuse to attempt to settle.
• The independence of the third party is an essential feature of ADR, as is the fact that (wit
exception of arbitration) they cannot impose a solution.
, Mediation
• Procedure:
1. The parties will agree on an independent third person or body who will act as a ‘go-betw
known as a mediator.
2. The mediator will be sent written statements from both parties and, thereafter, will discus
case with them on a ‘without prejudice’ / confidential basis.
3. In many cases, the mediator and the parties will meet in the same building. This enable
issues to be dealt with quickly because, if necessary, the parties can meet face to fa
resolve their differences. There are also other forms of mediation in which the dispu
dealt with by correspondence, telephone conversations or online with the use of technolo
• Enforcement: Even if an agreement is reached, it is not automatically binding as the client ca
enforce this like a court judgment. However, if the parties do agree to terms suggested as a r
of mediation, they have entered into a contract. If one of the parties does not carry out
contract, they may be sued for the breach.
,ADR
• If the client is willing (or has already agreed) to participate in ADR, it should be used unless:
1. it is obviously inappropriate, for example because an injunction is required;
2. the other party is unlikely to co-operate in the process; or
3. the other party cannot be trusted to comply with an award.
• If a party refuses an ADR proposal from the other side, they must submit a witness statement with
days, explaining their reasons. However, this statement must not be disclosed to the trial judge un
issue of costs is addressed.
• The case of Churchill v Merthyr Tydfil established that courts now have the lawful authority to
(suspend) proceedings or even order parties to engage in ADR. However, such an order must not unde
the C’s fundamental right to have their case heard in court. The requirement is that the order mu
proportionate, ensuring that it serves the legitimate goal of resolving the dispute fairly, efficiently, an
reasonable cost.
• Failure to do so financial sanctions
,• During the course of the court proceedings the parties complete what is known as a direc
questionnaire and, to ensure that clients are fully aware of the importance and implicatio
ADR, solicitors are required to confirm they have explained to their client:
(a) the need to try to settle
(b) the options available; and
(c) the possibility of costs sanctions if they refuse to attempt to settle.
• The independence of the third party is an essential feature of ADR, as is the fact that (wit
exception of arbitration) they cannot impose a solution.
, Mediation
• Procedure:
1. The parties will agree on an independent third person or body who will act as a ‘go-betw
known as a mediator.
2. The mediator will be sent written statements from both parties and, thereafter, will discus
case with them on a ‘without prejudice’ / confidential basis.
3. In many cases, the mediator and the parties will meet in the same building. This enable
issues to be dealt with quickly because, if necessary, the parties can meet face to fa
resolve their differences. There are also other forms of mediation in which the dispu
dealt with by correspondence, telephone conversations or online with the use of technolo
• Enforcement: Even if an agreement is reached, it is not automatically binding as the client ca
enforce this like a court judgment. However, if the parties do agree to terms suggested as a r
of mediation, they have entered into a contract. If one of the parties does not carry out
contract, they may be sued for the breach.
