Lawyers on both sides of a dispute are under a duty to advise their clients on the alternatives to litigation — such as arbitration, mediation and early neutral evaluation — rather than rushing into litigation. Most ADR procedures can be accessed using a commercial dispute resolution service, such as the Chartered Institute of Arbitrators (CIArb) or the Centre for Effective Dispute Resolution (CEDR).
Under the Civil Procedure Rules, litigation is seen as a last resort. It is also recognised that parties cannot be forced into using ADR procedures unless they have agreed. Nevertheless, the CPR imposes an obligation to at least consider ADR, and the courts are prepared to impose costs and other sanctions on parties who unreasonably refuse to comply.
The advantages of ADR
The advantages of ADR are that it is more flexible and simpler than litigation, with less demanding preparation required, and with the strict rules of evidence not applying. ADR procedures can be arranged to suit the convenience of the parties, in a suitable location, resulting in a minimum of disruption to their business.
ADR is speedier than litigation. Trials in litigation are generally in public, whereas ADR takes place in private, and is less stressful and less expensive than litigation.
ADR can produce solutions going beyond the strict parameters of the original dispute. A court only has jurisdiction to make orders within the confines of the issues raised by the statement of case. And finally, ADR is less confrontational.
