27th September 2017

Alternative Dispute Resolution (“ADR”)

Consider Mediation:

 

Due to having an adversarial judicial process in England and Wales, pursing any formal claim through the Court is inherently risky. Add to the risk element the fact that you may have to pay your opponent’s legal costs and that risk may increase exponentially. Add to the mix that any claim equal to and above £10,000.00 attracts a Court fee commensurate to 5%[1] and consider that time is also a factor. Whilst the Court seeks to progress matters as best as it can, because of cuts to resources and Judge availability, the reality is that parties involved in formal proceedings are likely to be involved in that dispute for around 52 weeks[2].

 

That is a long time to be potentially involved in a formal dispute and there are many circumstances that you may have to account for later down the line than you would at the onset of the dispute [such as whether or not your opponent is solvent or whether there was a likelihood of them becoming insolvent during the dispute – if they were, this would have a detrimental effect on the claim’s ability to proceed] and in any event, Court proceedings are not the only means of resolving a dispute.

 

The big “buzzwords” at the moment are “Alternative Dispute Resolution” (“ADR”). What this means practically is that the Parties arrange a without prejudice meeting, predominately with a jointly appointed independent 3rd party Mediator, to try and reach a commercial sensible resolution that the Parties are able to ‘live with’.

 

Statistically, Mediation works as a means of resolving matters. Out of every 10 mediations that are held, around 7 settle on the day. Two further matters (of those 10) settle within 3 weeks of the mediation. Some cases [and this is extremely rare] are just not suitable for mediation and proceed to trial.

 

ADR works and although it might appear to be a “costs heavy” approach, weighed against a litigation that is taking 12 months or longer, the likelihood is that a resolution could be achieved for comparatively low price when considered against going to Court and the risk associated with the same.

 

We at EHL Commercial Law we understand that the thought of being involved in a lengthy and costly litigation is daunting and sometimes not financially viable and so, in circumstances where your Opponent agrees, we offer the ability for you to instruct one of our Accredited Mediators for an agreed fixed fee[3] with the mediation to be held at our City Gate Office which has been specifically designed for ADR in order to see if a commercial resolution can be achieved. At the very least, we would expect to assist you in narrowing down the points of dispute.

 

Should you require more information about pursuing Mediation or instructing one of our Mediators, please feel free to contact Stuart Southall on 0330 024 9643 or stuart.southall@ehlcommercial.co.uk

 

[1] Which is the first of 3 Court fees that would have to be paid. The Claimant then needs to pay the Allocation Fee and Listing Fee.

[2] This is subject to determination as to the quantum in dispute, the difficulties associated with the matter if it is a technical dispute and the track that the matter is allocated to. This time period can be extended or shortened.

[3] Which the Parties will be jointly and severally responsible for