Its Use As The 'Safer' Option And The Limitations.
Andrew Olins, Commercial Property Litigation Partner examines the role of ADR in the new litigation landscape.
Alternative Dispute Resolution (ADR) is likely to become one of the significant imprints of the Woolf reforms.
One of the perceived inadequacies of the litigation process, that the Woolf report identified, was its inflexibility in dealing cheaply with the "real" issues and concerns of the parties. It was therefore conceived that ADR had an important role to play in resolving disputes, apart from Court proceedings.
Under the Civil Procedure Rules (CPR) one of the Courts new case management duties is to "encourage the parties to use an alternative dispute resolution procedure if the Courts consider that appropriate, and facilitating the use of such procedure".
What are these alternative dispute procedures that we are encouraged to use?
What Is ADR?
The term has a broad meaning. It can mean, simply, the parties negotiating a resolution through their solicitors. More usually, it involves some independent third party as a mediator or adjudicator. The methods of this type of resolution are various. The "mediator" can act purely as a facilitator to settlement, or, the parties can appoint someone to act as an "adjudicator" to determine the dispute in an informal way, or, particular issues in the dispute - so as to assist the parties in assessing the strengths or weaknesses of their case (without actually deciding the issues in the case, in a determinative fashion).
Organisations such as "CEDR" offer sophisticated facilities for such settlement meetings.
Distinct From Arbitration
These methods of resolving disputes must be distinguished from a formal arbitration with which many lawyers and surveyors are already familiar.
Formal arbitration, as a process, is seen as equally hidebound with procedural technicalities, and, as expensive as litigation. Woolf thus does not particularly favour the formal arbitration process.
CPR has not, therefore, seriously encouraged the expansion of formal arbitration, (perhaps to the disappointment of many in the legal and surveying professions), but has encouraged the informal settlement, particularly by mediation.
How Does The Court Encourage Those Procedures?
Encouraging And Facilitating
The Court cannot direct that a particular procedure be used to resolve the dispute - it can only encourage and facilitate - principally by putting a stay on...