Alternative Dispute Resolution (ADR) refers to ways of resolving disputes without resorting to traditional court litigation. This includes processes such as
Arbitration – a neutral arbitrator listens to both sides and makes a binding decision. It is more formal than mediation, but depending on the size of the case, it can be faster and less costly than court proceedings. Barristers from the independent bar are particularly helpful in this sphere because of the balance they bring.
Negotiation – this involves direct discussions between the parties to reach a mutually acceptable agreement. It is informal and flexible, allowing the parties to control the outcome.
Mediation – a neutral third party facilitates discussions between the parties to help them find common ground. Mediation is confidential and can preserve relationships by encouraging cooperative problem-solving. While there is no guarantee of resolution, and parties might have to resort to another process, it does have the advantage of being a low-cost option (depending on how it is run).
Expert determination – a decision-maker with expertise in the dispute's subject matter is chosen by the parties. They review the evidence and arguments presented by both sides. The expert’s decision is binding on the parties. There are usually limited grounds for appeal.
Adjudication – this is a statutory process used in the construction industry and governed by the Construction Contracts Act 2002. It is a fast-track dispute resolution process for quickly resolving building and construction disputes so that cash flow and construction work can continue.
Advantages of ADR
ADR can offer several advantages over traditional court proceedings:
- It is often (but not always) more cost-effective.
- There is less potential for prolonged proceedings. ADR processes, particularly negotiation and mediation, tend to be quicker.
- It offers greater flexibility and control over the process and outcome. Parties can tailor the process to their needs and work towards an acceptable solution for both sides.
- It is typically less adversarial, which can help preserve relationships, whether commercial, familial, or otherwise.
What are the advantages of using a barrister in ADR processes?
Barristers can help at all stages of ADR. They bring a sense of professionalism and, at times, a sense of reality to the proceedings. They provide:
Objective and strategic advice – Barristers’ experience allows them to focus on the key issues and give clear, objective advice to clients about the weaknesses of their case at all stages of the process. They can draw on their experience to plan for the best resolution.
Independence – Barristers are independent and operate free from the potential conflicts of interest that might arise in law firms. Their primary duty is to their client.
Specialism – Barristers are often specialists in various areas of law, and they can quickly spot the pitfalls or problems when resolving a dispute.
Cost-Effective - Barristers can speed up the resolution process through their experience and skills. They can also reduce the likelihood of subsequent appeals or disputes by ensuring the chosen solution is long-lasting.
Confidentiality - Barristers are under a duty of confidence. They are experienced in handling sensitive information and helping clients preserve confidentiality around their disputes (subject to all lawyers' overriding duty to the Court).
If things go wrong. Sometimes, an ADR process may go wrong part way through. Barristers know how to deal with these situations. As they may have been involved since the start of the dispute, they can move quickly to advise on different options.