5.2 Alternative Dispute Resolution (2)
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Advantages of ADR
The criticisms of the civil justice system identified in the Woolf Report included the fact that it was slow and expensive. The benefits of ADR are that a resolution can be found far more quickly than it would through the Court system - in many cases, ADR will only take a couple of days. A further advantage is that whilst not cheap, it is usually cheaper than litigation.
The flexible nature of ADR means that a tailor made solution can be developed and there may well be a 'win-win' solution, unlike a trial when there can only be a 'winner' and a 'loser'. This brings benefits in terms of maintaining relationships, for example in family or commercial cases where the parties may need to have continued contact. In a court case, its adversarial nature means that parties are pitted against each other whereas the emphasis in ADR is on parties working together to reach a mutually acceptable solution.
If ADR is tried but is ultimately unsuccessful. It is still open to the parties to proceed with litigation.
ADR and the Courts
Since the introduction of the Civil Procedure Rules, the emphasis has been firmly placed on ADR as a method of resolving disputes and trials are considered a last resort. To that end, once litigation has commenced, judges will make enquiries as to whether ADR has been considered or indeed tried.
The Allocation Questionnaire sent to both parties specifically asks if they wish to stay proceedings for a least one month in order to try and resolve the matter using alternative means. In addition, the parties may request a stay or the Court itself can stay proceedings if it considers that it would be beneficial.
If a settlement is reached, the Claimant should notify the Court that this is the case and that further steps in the litigation process are no longer required.
The emphasis on ADR continues throughout the litigation process and it is incumbent upon all solicitors to consider the possibility of ADR throughout the process. Indeed, the Courts will question all parties at case management hearings as to why ADR has not been tried or if it was attempted, why it did not succeed.
ADR and Costs
If one side refuses to consider ADR, they may face cost penalties unless there was a good reason behind the refusal. Thus, solicitors should keep all evidence relating to ADR including the times when it was suggested both to the client and/or their opponent.