Acing the SQE/Dispute Resolution/Different options for dispute resolution

Introduction

In this chapter, we will examine three distinct approaches to dispute resolution: arbitration, mediation, and litigation. The first two methods fall under the category of alternative dispute resolution (ADR). The section on arbitration will explore its historical roots and development, followed by an assessment of its strengths and weaknesses. We will then delve into the arbitration process, both within domestic and international contexts. Next, we will turn our attention to mediation and its fundamental principles. This increasingly prevalent ADR approach will be evaluated based on its effectiveness in resolving various civil disputes.

A solicitor specializes in dispute resolution should keep in mind that they have a professional obligation to explore various dispute resolution options available to their client when representing them in a matter involving a conflict with a third party. During this process, they should discuss with their client whether alternative dispute resolution (ADR) techniques, such as mediation, may be a better alternative to formal procedures like arbitration or litigation. This requirement was initially included in the Solicitors Regulation Authority's (SRA) Code of Conduct 2011, although it has since been updated. Parties and their legal representatives should bear in mind that the Practice Direction on pre-action conduct encourages the settlement of disputes before litigation commences and mandates the consideration of alternative dispute resolution (ADR). It serves as a reminder that litigation should only be pursued as a last resort. In accordance with the relevant pre-action protocol or Practice Direction, the parties should contemplate whether negotiation or some other form of ADR could facilitate resolution of their dispute prior to commencing legal proceedings. If a party fails to consider ADR, there may be cost sanctions imposed at the conclusion of the litigation. Even if litigation is ultimately chosen as the preferred dispute resolution mechanism, the Civil Procedure Rules and associated Practice Directions require parties to consider the use of ADR. For example, Rule 1.4(2)(e) directs the court to promote the use of ADR if it is deemed appropriate. Rule 26.4 allows the court to stay cases to permit ADR to take place, and the Practice Direction to Part 29 empowers the court to issue directions regarding ADR on its own initiative without requiring a hearing.

Different options for dispute resolution

Alternative dispute resolution is an important option for solving civil disputes and the parties should engage if at all possible. Failure to do so may result in financial sanctions.

The characteristics of arbitration, mediation and litigation which make them an appropriate mechanism to resolve a dispute

Arbitration, mediation, and litigation are three distinct mechanisms for resolving disputes within the English dispute resolution system, each with its own characteristics that make it appropriate for different situations:

Litigation:

Adversarial Process: Litigation is an adversarial process where parties present their case to a judge or jury in a court of law. Each party advocates for its own position, and the judge or jury makes a binding decision based on the evidence presented and applicable law. Formal Rules and Procedures: Litigation follows formal rules and procedures set out by the court, including rules of evidence and civil procedure. These rules provide structure and ensure fairness in the resolution process. Legal Representation: Parties in litigation typically have legal representation, such as solicitors and barristers, who advocate on their behalf and navigate the complexities of the legal system. Binding Decision: The decision reached in litigation is binding on the parties involved and can be enforced through court orders. Appeals may be available in certain circumstances, but generally, the decision is final. Arbitration:

Adjudicative Process: Arbitration is a quasi-judicial process where an impartial arbitrator or panel of arbitrators is appointed to resolve the dispute. The arbitrator(s) listen to both parties, consider evidence, and render a decision, which is binding on the parties. Flexibility: Arbitration offers parties more flexibility in choosing the procedures, rules, and arbitrators to govern the process. This flexibility allows parties to tailor the arbitration to their specific needs and preferences. Confidentiality: Arbitration proceedings are often confidential, which can be beneficial for parties seeking to keep sensitive information out of the public domain. Enforceability: Arbitration awards are generally enforceable through the courts, both domestically and internationally, under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Mediation:

Facilitative Process: Mediation is a voluntary and confidential process where a neutral third party, the mediator, assists the parties in reaching a mutually acceptable agreement. The mediator facilitates communication, identifies underlying interests, and helps parties explore options for resolution. Informal and Non-binding: Unlike litigation and arbitration, mediation is informal and non-binding. Parties have control over the outcome and can choose whether or not to accept any proposed settlement. Preserves Relationships: Mediation can help preserve relationships between parties by fostering open communication and collaboration. It allows parties to address underlying issues and find creative solutions that meet their interests. Cost and Time Efficiency: Mediation is often faster and less expensive than litigation or arbitration, as it avoids lengthy court proceedings and discovery processes.