3rd November 2017
As the quieter, lesser-known sibling of the court case, ADR is a valuable way to resolve a dispute – and shouldn’t be overlooked. In fact, if you do take a case to court, judges will usually expect you to have attempted ADR to solve the dispute before embarking on court proceedings. Litigation should, in most cases, be a last resort.
What is alternative dispute resolution?
ADR is an opportunity for the opposing sides in a dispute to come together and, with or without the help of a third party, reach a resolution instead of going to court. The different forms of ADR include negotiation, mediation, adjudication and arbitration. Negotiation does not involve a third party, mediation and adjudication are the most common forms using a third party, and all appropriate options should and can be considered.
ADR might be used to resolve a dispute between large multinational companies, to achieve a divorce settlement for a couple or a disagreement between neighbours. However, ADR is not considered for criminal cases which are brought to the criminal courts by the state.
Mediation involves an independent third party, who’s appointed to help both sides develop effective communications and reach an agreed settlement. Unlike adjudication and arbitration where a decision is made by a third party, in mediation both sides are guided towards reaching a compromise together. If it fails and the disagreement is taken to court, details of the mediation won’t be revealed in court. Mediation is far cheaper than court proceedings and both sides share the cost of the process.
Adjudication is most commonly used within the construction industry in order to protect cash flow and reduce insolvency in the industry. Once the third-party adjudicator has received a referral notice, which starts off the formal process, he or she aims to reach a decision within 28 days. The decision remains binding and enforceable until the matter is finally determined in arbitration or litigation (as appropriate), or when the parties agree it should be final. In normal circumstances, the parties have to bear their own costs of the adjudication.
Arbitration is used less commonly than mediation. Here, an arbitrator will be appointed to preside over the dispute – he or she is usually legally qualified or holds a membership with the Chartered Institute of Arbitrators. Similar to a judge, their decision is absolute and enforceable. Unlike adjudication, the arbitration process may be lengthy, however, it is usually more flexible than court proceedings, and disputes can sometimes be resolved through written submissions from both parties. As with adjudication, the parties will bear their own costs of arbitration.
The benefits of ADR
Aside from being cheaper than court proceedings, ADR cases are also confidential, which is particularly valuable when the dispute is about a sensitive topic or you want to avoid negative publicity. In particular, mediation can help both parties continue their relationship without acrimony and neither side needs to publicly lose face. Another advantage of ADR is that it usually takes less time than court proceedings – meaning you can reach a settlement faster.
ADR in agriculture
As in all industries, disputes can arise from many scenarios. For example, disputes about agricultural land including rights of way and boundaries, tenancy issues, appeals regarding agricultural payments, family farm and partnership disputes, contractual disputes and claims against professional advisors – to name a few.
If a dispute emerges from a contractual relationship, the contract may have a dispute resolution clause in it. This typically requires the parties involved to try to resolve disputes through negotiation and ADR, with a time lapse before proceeding to litigation.
If you want to use ADR to solve a dispute, there are a number of registers through which you can source third parties to manage the dispute. While you don’t need legal advice in all cases, it’s often advisable to ensure your dispute achieves the best available outcome.