When a dispute arises, most people often think of litigation first before they consider other alternatives to resolving such a dispute. In fact, most people are not aware that there are other alternatives to litigation. Usually when a person goes to see their lawyer in respect of a dispute, they are more often than not advised to resolve matters by way of litigation.
This short series will explore alternative ways of resolving a dispute, commonly known as alternative dispute resolution (ADR). I will look at the reasons why one might consider other ways of resolving disputes instead of litigation, and intend to state the reasons why litigation may not be the best way of resolving some disputes.
I will also consider the various advantages of employing ADR, consider its cost in comparison to litigation, and how one might decide among the various ADR routes or schemes, not to mention the various complaint bodies one might approach to resolve specific disputes outside of the courts.
Why ADR?
The average dispute that is initiated in the High Court takes on average 18 months to be resolved. To make matters worse, such proceedings are very expensive. Besides paying your lawyers, you would have to pay for other contingencies like reports, opinions, expert witnesses and outlays.
Even worse is the fact that you have no control what so ever on the decision of the court. In that regard, in the event that your case is unsuccessful, you will be charged with paying the legal cost of your opponent.
Besides all that, court cases are formal, stressful and bound by procedures and evidence. These proceedings are usually heard in public, barring family law hearings and other exceptional matters.
In a nutshell, court cases are slow, expensive, adversarial and stressful to say the least. On the other hand, ADR is confidential, flexible, consensual and conciliatory:
Confidential: ADR proceedings are usually heard in private; their outcomes are confidential and not open to public or the media.
Flexible: ADR is much more flexible than the courts. ADR can be initiated in some cases by a simple phone call, letter, complaint form, etc. Often it costs nothing to initiate ADR. It encourages the parties to meet in a neutral and informal environment. The flexibility of ADR allows for many flexible outcomes, such as apology.
Consensual: For ADR to be used in a dispute both parties must agree to using the process. Furthermore, one party can withdraw from the process even in the middle of the ADR process. Decisions of the ADR are not binding unless both sides agree. In effect, the mediator encourages both parties to negotiate an outcomes that works for both of them. Both sides often adhere to the decision of an ADR process as they are both participated and agreed in through the process.
Conciliatory: ADR is not as adversarial as court cases can be. The adversarial nature of court proceedings can cause hostility and antagonism between the parties. ADR operates differently in that it is more open and friendly. It encourages both parties to talk to each other and try to work out a solution to the dispute.
Cost of ADR
Some ADRs cost nothing while others cost some money. For example, the Family Mediation Service costs very little or nothing at all. These costs will vary depending on the type of dispute, its complexity and the value of the dispute itself. For example, a dispute between two neighbours concerning noise hazards will be less expensive than a breach of a commercial contract.
The general principle in ADR is that each party pays their own costs. So it is important to be sure or have a reasonable idea of the costs involved in the type of ADR you intend to use. A prospective party is entitled to get an estimate of fees before going ahead with the process.
To be continued...
Femi Daniyan is a barrister and founder/president of the Afro-Irish Organisation, a human rights organisation.
