Dispute Resolution notes
UNIT 1:
CHAPTER ONE: DIFFERENT OPTIONS FOR DISPUTE RESOLUTION
Introduction - Many claims are dealt with online
- Arbitration, mediation and negotiation- considered at first interview with
the client and reviewed regularly thereafter
- Most cases are settled well before the trial
Alternative - Litigation is considered the last resort and sanctions for clients who refuse
dispute to consider other options
resolution - Alternative dispute resolution (ADR)- collective terms for means of settling
disputes outside of the traditional litigation process
- Negotiation- possible solutions whether in formal meetings or by
correspondence (form of ADR), used throughout litigation process
- Most cases are settled and negotiation is a key element in this
The nature of ADR
- ADR e.g. mediation- means of resolving disputes with the assistance of an
independent third party who may help the parties to reach their own
solution but cannot impose a solution
- Voluntary unless ordered by the court
- Confidential or ‘without prejudice’- if it fails and court proceedings are
taken, the court will not be made aware of the ADR until after the judge has
dealt with liability and damages
- Parties choose the process and can withdraw at any time before a
settlement is reached, if they don’t like the proposed solution- they do not
have to accept it
- Arbitration is voluntary- parties either voluntarily enter into arbitration
agreement or agreed to do it in this way once a dispute arose
- If enter voluntarily- one party commences court proceedings, other
acknowledges service and if they wish enforce arbitration agreement, apply
to the court to stay (suspend) the proceedings
- Litigation is not voluntary (apart from choosing to issue claim)- neither party
can withdraw without paying opponents costs.
- If unable to negotiate settlement or resolve differences through ADR- court
will impose their own solution which will be enforced by the party who
obtains judgement
Failure to engage with ADR
- Solicitor should discuss availability of ADR if a dispute arises. Should be used
unless:
o It is inappropriate e.g. injunction required
o Other party unlikely to co-operate
o Other party cannot be trusted to comply with an award
- Civil Procedure Rules 1998- dictate how a case is litigated, failure to respond
to a reasonable proposal to attempt settlement by ADR may impact any
future order for costs
- Direction concerning ADR included in court orders- must serve witness
statement giving reasons for not engaging within 21 days of proposal and
,Dispute Resolution notes
must not be shown to trial judge until questions of costs arise
- Courts will take nature of dispute, merits of case, extent of other settlement
methods attempted, costs of ADR, delay and prospect of success into
account when calculating cost penalties
- Churchill v Merthyr Tydfil CBC- court can stay proceedings for an order
parties to engage in non-court dispute resolution process as long as it
doesn’t impair C’s right to a judicial hearing and proportionate to achieve
settling the dispute fairly, quickly and at a reasonable cost. Now have the
power to order parties to engage
- During court proceedings, parties will complete a directions questionnaire
to show awareness of importance and implications of ADR
- Solicitors need to explain to clients:
o The need to settle
o Options available
o Costs sanctions if they refuse to settle
The independent third party
- Independence is important- cannot impose a solution (except in arbitration)
- Parties will be more open and less aggressive to each other- chance of
settlement is higher
- Trained to act as neutral and will have the appropriate industry or
commercial knowledge for the dispute
- Come up with ideas neither party have thought of
Mediation - Availability of mediation should be discussed at an early stage with client
- If open to it, propose by letter or email to the opponent
Procedure
- Mediator is an independent third person or body
- Will be sent written statements from both parties and discuss with them on
a ‘without prejudice’ basis (future judge wont know)
- Identify real areas of disagreement and move parties towards constructive
solutions
- Mediator and parties meet in the same building but can be dealt with by
correspondence, telephone conversations and online
Advantages
- Cost and speed
o Cheaper than arbitration and litigation, process is quicker
o Still have to pay lawyer and third party for their services
o Reduction in case prep time for lawyers
- Flexibility
o Parties can choose procedure to follow and no need for compliance
with laws or rules
- Privacy
o Takes place in private so reputation and future claims are not an
issue
o Mediator is subject to a confidentiality agreement
- Preserving a business relationship
o Non-confrontational method means they can continue relationship
and solution is theirs and not imposed on them
,Dispute Resolution notes
- Ability to withdraw at any time
Disadvantages
- Not appropriate when ruling on a point of law or an injunction is required
- Allegations of fraud or commercially disreputable conduct is unsuitable too
- Disclosure
o No formal procedure for disclosure of docs and evidence, parties can
resolve the issue without knowing all the facts- unjust outcome
o However many clients prefer a quick decision rather than wasting
time and money on a protracted dispute to get a potentially more
correct outcome
- Privacy
o Client requiring public vindication to repair reputation and show
they weren’t at fault
- Ability to withdraw
o Cannot be forced to engage in mediation against their wishes
o Necessary to resort to litigation- time and money expended without
a resolution
Enforcement
- Agreement not automatically binding
- If the parties agree to terms suggested as a result of mediation they have
entered into a contract
- Can be sued for breach
Arbitration - Entirely separate from civil justice system
- Parallel dispute resolution
- If agreed to be subject to it, cannot take advantage of the normal court
processes
- May arise in two ways:
o A) parties contractually bound to use arbitration, clause in contract,
common in construction and shipping
o B )Absence of such a clause parties may agree to arbitration once a
dispute has arisen and may choose their own arbitrator with the
relevant expertise
Legal authority
- Largely governed by the Arbitration Act 1996
- Only applies if agreement to arbitrate is in writing
Procedure
- Referred to an independent arbitrator- may be specified in the original
contract or may choose their own arbitrator with the relevant experience
- Arbitration process will be less formal than the court procedure
- One third party has reached their decision- binding on both parties to the
dispute
Advantages
- Quicker and cheaper than going to court (apart from costs of retaining the
services of an arbitrator)
- Less formal procedures
- Decision from impartial third party with expertise
- Takes place in private thus retaining confidentiality
, Dispute Resolution notes
- More practical solutions than the court has power to order
- Decision is binding on the parties
- Binding nature of the outcome is the most important distinction with
mediation
Disadvantages
- Dispute may not receive the depth of investigation it would receive in the
courts
- Certain remedies e.g. injunctions are not available
- Unlikely to be cheap- arbitration expert/panel will need to be paid and
lawyers
- Decision is binding with very limited rights of appeal
Enforcement
- Winning party can apply to the High court under s 66 of the Arbitration Act
1996 to enforce the arbitration award as if it were a court judgement
Litigation - If the parties cannot/will not engage in ADR can only proceed by ways of
litigation through the courts
- Can’t withdraw without paying the opponent’s cost
- Court will impose their own solution that may be enforced by the successful
party
- Breaks the deadlock between the parties at a cost
- Most civil disputes are between individuals and/or companies, most
common are contractual disputes
The Civil Procedure Rules
- Civil ligation is governed by the Civil Procedures Rules 1998 (CPR) which
dictate the procedure that must be adopted when pursuing a claim through
the courts
- CPR consists of 89 parts each of which deal with one aspect of civil
procedure
- Additional info on how the rules work in linked Practice directions bearing
the same reference number e.g. Part 36 and Practice Directions 36 (PD 36)
- User-friendly system of resolving such disputes- important due to increase
of litigants in person (represent themselves) who are unlikely to have high
legal knowledge
- Courts make sure process proceeds at a reasonable pace by making
appropriate directions, setting strict timetables, ensuring parties comply
with them, backed up by a system of sanctions that the court can impose
The civil courts
- Most civil disputes dealt with by the Country Court or High Court
Terminology
- Proceedings may be brought by individuals, organisations or companies
- Claimant- person or body who issues the claim
- Defendant- party against whom proceedings are issued
- Can be more than one claimant or defendant
Court personnel
Judges
- County and High Court work dealt with district judges
- Deal with the majority of interim applications
UNIT 1:
CHAPTER ONE: DIFFERENT OPTIONS FOR DISPUTE RESOLUTION
Introduction - Many claims are dealt with online
- Arbitration, mediation and negotiation- considered at first interview with
the client and reviewed regularly thereafter
- Most cases are settled well before the trial
Alternative - Litigation is considered the last resort and sanctions for clients who refuse
dispute to consider other options
resolution - Alternative dispute resolution (ADR)- collective terms for means of settling
disputes outside of the traditional litigation process
- Negotiation- possible solutions whether in formal meetings or by
correspondence (form of ADR), used throughout litigation process
- Most cases are settled and negotiation is a key element in this
The nature of ADR
- ADR e.g. mediation- means of resolving disputes with the assistance of an
independent third party who may help the parties to reach their own
solution but cannot impose a solution
- Voluntary unless ordered by the court
- Confidential or ‘without prejudice’- if it fails and court proceedings are
taken, the court will not be made aware of the ADR until after the judge has
dealt with liability and damages
- Parties choose the process and can withdraw at any time before a
settlement is reached, if they don’t like the proposed solution- they do not
have to accept it
- Arbitration is voluntary- parties either voluntarily enter into arbitration
agreement or agreed to do it in this way once a dispute arose
- If enter voluntarily- one party commences court proceedings, other
acknowledges service and if they wish enforce arbitration agreement, apply
to the court to stay (suspend) the proceedings
- Litigation is not voluntary (apart from choosing to issue claim)- neither party
can withdraw without paying opponents costs.
- If unable to negotiate settlement or resolve differences through ADR- court
will impose their own solution which will be enforced by the party who
obtains judgement
Failure to engage with ADR
- Solicitor should discuss availability of ADR if a dispute arises. Should be used
unless:
o It is inappropriate e.g. injunction required
o Other party unlikely to co-operate
o Other party cannot be trusted to comply with an award
- Civil Procedure Rules 1998- dictate how a case is litigated, failure to respond
to a reasonable proposal to attempt settlement by ADR may impact any
future order for costs
- Direction concerning ADR included in court orders- must serve witness
statement giving reasons for not engaging within 21 days of proposal and
,Dispute Resolution notes
must not be shown to trial judge until questions of costs arise
- Courts will take nature of dispute, merits of case, extent of other settlement
methods attempted, costs of ADR, delay and prospect of success into
account when calculating cost penalties
- Churchill v Merthyr Tydfil CBC- court can stay proceedings for an order
parties to engage in non-court dispute resolution process as long as it
doesn’t impair C’s right to a judicial hearing and proportionate to achieve
settling the dispute fairly, quickly and at a reasonable cost. Now have the
power to order parties to engage
- During court proceedings, parties will complete a directions questionnaire
to show awareness of importance and implications of ADR
- Solicitors need to explain to clients:
o The need to settle
o Options available
o Costs sanctions if they refuse to settle
The independent third party
- Independence is important- cannot impose a solution (except in arbitration)
- Parties will be more open and less aggressive to each other- chance of
settlement is higher
- Trained to act as neutral and will have the appropriate industry or
commercial knowledge for the dispute
- Come up with ideas neither party have thought of
Mediation - Availability of mediation should be discussed at an early stage with client
- If open to it, propose by letter or email to the opponent
Procedure
- Mediator is an independent third person or body
- Will be sent written statements from both parties and discuss with them on
a ‘without prejudice’ basis (future judge wont know)
- Identify real areas of disagreement and move parties towards constructive
solutions
- Mediator and parties meet in the same building but can be dealt with by
correspondence, telephone conversations and online
Advantages
- Cost and speed
o Cheaper than arbitration and litigation, process is quicker
o Still have to pay lawyer and third party for their services
o Reduction in case prep time for lawyers
- Flexibility
o Parties can choose procedure to follow and no need for compliance
with laws or rules
- Privacy
o Takes place in private so reputation and future claims are not an
issue
o Mediator is subject to a confidentiality agreement
- Preserving a business relationship
o Non-confrontational method means they can continue relationship
and solution is theirs and not imposed on them
,Dispute Resolution notes
- Ability to withdraw at any time
Disadvantages
- Not appropriate when ruling on a point of law or an injunction is required
- Allegations of fraud or commercially disreputable conduct is unsuitable too
- Disclosure
o No formal procedure for disclosure of docs and evidence, parties can
resolve the issue without knowing all the facts- unjust outcome
o However many clients prefer a quick decision rather than wasting
time and money on a protracted dispute to get a potentially more
correct outcome
- Privacy
o Client requiring public vindication to repair reputation and show
they weren’t at fault
- Ability to withdraw
o Cannot be forced to engage in mediation against their wishes
o Necessary to resort to litigation- time and money expended without
a resolution
Enforcement
- Agreement not automatically binding
- If the parties agree to terms suggested as a result of mediation they have
entered into a contract
- Can be sued for breach
Arbitration - Entirely separate from civil justice system
- Parallel dispute resolution
- If agreed to be subject to it, cannot take advantage of the normal court
processes
- May arise in two ways:
o A) parties contractually bound to use arbitration, clause in contract,
common in construction and shipping
o B )Absence of such a clause parties may agree to arbitration once a
dispute has arisen and may choose their own arbitrator with the
relevant expertise
Legal authority
- Largely governed by the Arbitration Act 1996
- Only applies if agreement to arbitrate is in writing
Procedure
- Referred to an independent arbitrator- may be specified in the original
contract or may choose their own arbitrator with the relevant experience
- Arbitration process will be less formal than the court procedure
- One third party has reached their decision- binding on both parties to the
dispute
Advantages
- Quicker and cheaper than going to court (apart from costs of retaining the
services of an arbitrator)
- Less formal procedures
- Decision from impartial third party with expertise
- Takes place in private thus retaining confidentiality
, Dispute Resolution notes
- More practical solutions than the court has power to order
- Decision is binding on the parties
- Binding nature of the outcome is the most important distinction with
mediation
Disadvantages
- Dispute may not receive the depth of investigation it would receive in the
courts
- Certain remedies e.g. injunctions are not available
- Unlikely to be cheap- arbitration expert/panel will need to be paid and
lawyers
- Decision is binding with very limited rights of appeal
Enforcement
- Winning party can apply to the High court under s 66 of the Arbitration Act
1996 to enforce the arbitration award as if it were a court judgement
Litigation - If the parties cannot/will not engage in ADR can only proceed by ways of
litigation through the courts
- Can’t withdraw without paying the opponent’s cost
- Court will impose their own solution that may be enforced by the successful
party
- Breaks the deadlock between the parties at a cost
- Most civil disputes are between individuals and/or companies, most
common are contractual disputes
The Civil Procedure Rules
- Civil ligation is governed by the Civil Procedures Rules 1998 (CPR) which
dictate the procedure that must be adopted when pursuing a claim through
the courts
- CPR consists of 89 parts each of which deal with one aspect of civil
procedure
- Additional info on how the rules work in linked Practice directions bearing
the same reference number e.g. Part 36 and Practice Directions 36 (PD 36)
- User-friendly system of resolving such disputes- important due to increase
of litigants in person (represent themselves) who are unlikely to have high
legal knowledge
- Courts make sure process proceeds at a reasonable pace by making
appropriate directions, setting strict timetables, ensuring parties comply
with them, backed up by a system of sanctions that the court can impose
The civil courts
- Most civil disputes dealt with by the Country Court or High Court
Terminology
- Proceedings may be brought by individuals, organisations or companies
- Claimant- person or body who issues the claim
- Defendant- party against whom proceedings are issued
- Can be more than one claimant or defendant
Court personnel
Judges
- County and High Court work dealt with district judges
- Deal with the majority of interim applications
