Civil disputes cover a wide range of situations for which people seek legal advice, such as contractual disputes, contentious probate, landlord and tenant disputes and employment law matters. Often, the claimant and/or defendant have had little choice but to seek legal advice to protect their interests and hopefully achieve an outcome in their favour.
The Courts and Alternative Dispute Resolution
In civil litigation, lawyers and their clients are obliged to assist the court in meeting ‘the overriding objective’, to enable the court to deal with cases ‘justly and at a proportionate cost’. In other words, the parties are obligated to deal with the dispute promptly and fairly, saving expense and the court’s resources where possible. Launching straight into litigation or proceeding to trial without considering alternative dispute resolution (ADR) is unlikely to be appreciated by the court and may well result in a party being penalised financially in any order made by the court.
Historically, the parties to the dispute are expected to have at least considered ADR before commencing litigation. Methods of Alternative Dispute Resolution include without prejudice correspondence, mediation, arbitration, and expert determination or appraisal. Settling your dispute through one of these methods is likely to save time and cost whilst offering flexibility and preserving relationships. The court does recognise that in some instances, ADR is not appropriate (for example, where a ruling needs to be made on a point of law).
Resolution Rather than Dispute
In July 2021, the Civil Justice Council published a report on compulsory Alternative Dispute Resolution, which concluded that mandatory ADR is compatible with human rights and is therefore lawful. Sir Geoffrey Vos, chair of the Civil Justice Council and Head of Civil Justice, welcomed the report and said that
“ADR should no longer be viewed as an alternative”, noting that “the focus should be on resolution rather than dispute”.
In December 2021, Master Davidson made an order directing the parties to ‘meaningfully’ engage in mediation, and were permitted to rely on the parties’ conduct during mediation in any application made for costs.
In light of these recent developments, any party to a dispute should carefully consider their willingness to engage in ADR before commencing litigation. In the midst of a dispute, emotions can run high and parties may be reluctant to engage in Alternative Dispute Resolution. It may seem appealing to reduce the other party to the inconvenience, cost and expense of litigation. However, it should be borne in mind that the courts will not take kindly to this, with unreasonable refusal of ADR taken into account in when making an order (especially where the dispute could have been resolved at an earlier stage).
rhw’s Dispute Resolution team provide advice on a wide range of disputes and the options available.
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