If you are involved in a legal dispute, you will want to resolve matters promptly, avoiding a protracted legal battle. Various dispute resolution mechanisms exist apart from litigation in court. Other options can be quicker and more cost-effective, in particular for cross-border disputes.
Litigation
The court litigation process can be lengthy. There is a strict pre-action protocol before the claimant formally commences proceedings at court. Both parties must follow the pre-action protocol. It requires them to set out the key aspects of their case, exchange documents which they rely on in support of their case, and negotiate the settlement of their dispute.
If the dispute does proceed to court litigation, then a party which did not engage in negotiation or make or consider serious offers of settlement at the pre-action protocol stage could later face an adverse costs order from the court. This means that even if someone wins their case, they could be required to pay at least some of the other side’s costs if they have not tried to resolve matters by negotiation or alternative dispute resolution.
If it is not possible to resolve matters out of court, the Claimant will commence proceedings by filing a Claim Form and Particulars of Claim which set out its case. The Defendant then responds with a Defence and the Claimant is entitled to respond with a Reply. The judge will set a timetable for the steps to trial. These comprise disclosure (the exchange of relevant documents including communications), witness statements of fact, expert witness statements and then trial. There are also various procedural applications to ask the court to make an order where the opponent has failed in some respect to comply with the court rules or with a court order. Continuous failure to comply with court orders or procedural rules can lead to the claim or defence being struck out.
A case can take many months or even years to conclude, depending on its complexity.
Alternative dispute resolution
There are several benefits to using an alternative method of dispute resolution, such as arbitration, mediation or early neutral evaluation. These can be used instead of court proceedings if a contract provides for an alternative dispute resolution mechanism. Alternatively, mediation or a simple “without prejudice” (off the record) meeting between the parties can be used during the litigation to attempt to resolve it. Parties to court litigation are under a continuing duty to attempt alternative dispute resolution.
There are also potential benefits to using alternative dispute resolution:
- It is usually quicker than the court process
- It is often more cost-effective
- It is generally a less stressful and disruptive option
- Issues remain confidential, and do not become a matter of public record as they would in a court case
- The parties have greater control over proceedings, including the timetable, arranging meetings and hearings, choosing who will deal with their case, and where hearings will take place
- Experts can be used to hearcases in specialist areas, for example, an arbitrator or a mediator with experience in a complex area of law such as intellectual property or financial law can be selected
- Alternative dispute resolution can prevent relationships from deteriorating, which is particularly beneficial if the parties will continue to work together
Arbitration
Arbitration is similar to court proceedings, but the case is privately arranged and heard by a professional arbitrator. The arbitrator hears the evidence, then makes a binding decision. Initial hearings are held to establish the issues to be decided, and the arbitrator will set a schedule for the exchange of information.
The hearing can be held in front of the arbitrator, with both sides having their cases presented by lawyers, or the matter can be decided on a documents-only basis.
Mediation
Mediation is where a neutral mediator works with the parties to explore potential options for resolving a case. The mediator has no power to impose a binding decision, so those involved can be sure that any outcome can only be one that they have agreed to.
The mediator will meet with the parties either together or by shuttling between them to discuss possible solutions.
Early neutral evaluation
Early neutral evaluation is often referred to as a “sense check”. A legal expert will provide the parties with an assessment of the strengths and weaknesses of their respective positions, and what they might realistically achieve, should their case go to trial. It gives those involved the chance to find a fast solution before matters escalate.
How 3CS can help
If you are involved in a legal dispute, our expert dispute resolution solicitors can advise you of the options available to you and discuss the best course of action. Our commercial lawyers will also structure and negotiate your commercial contracts to provide for the method of dispute resolution which best suits your business needs.
For advice or guidance, please get in touch.
