The area of Alternative Dispute Resolution, known as ADR is becoming increasingly important as a means to resolve a commercial or personal dispute, otherwise than through litigation. At George V. Maloney & Co. Solicitors, we believe in the value of both Mediation and Arbitration, and other forms of ADR.
Amongst the reasons why parties with a dispute might prefer to use ADR, rather than having a case heard in court, our clients have highlighted these items:
- Privacy: the meetings involved in ADR methods take place privately rather than in open court.
- Cost: with the exception of arbitration, the cost involved in all other forms of ADR are usually far less than would be involved in litigating the dispute.
- Speed: the disputing parties have more control over the process.
Arbitration is a means of resolving a dispute by a neutral third party; an independent arbitrator will hear details of a disagreement from the parties involved, consider all the facts involved, and give a final decision on the dispute. An agreement of the parties to submit their disputes to arbitration is most commonly found in the form of an arbitration clause incorporated into a contract between the parties, however parties may not contract out of either party’s entitlement to submit a dispute to arbitration.
Because mediation is voluntary, a person cannot be required to use mediation to resolve their dispute and the parties are free to decide at any time not to continue. Only the parties decide if, when and how to resolve their dispute in mediation. The terms of any resolution agreement reached between the parties only becomes binding on them when set down in writing and signed by them. Once a settlement agreement is concluded and signed by the parties in mediation (which does not always happen), it can be enforced like any other binding contract.
By law, before you start court action, your solicitor must advise you to consider mediation to resolve your dispute. The many advantages of mediation include:
- The parties decide if, when and how their dispute is resolved.
- A neutral, independent third party ‘mediator’ facilitates resolution of the dispute. The mediator may make suggestions about how a dispute may be resolved only when requested to do so by all parties.
- The parties may avoid some or all of the risk and cost associated with court action.
- All communication between the parties and the mediator is confidential and may not be used or referred to elsewhere if matters are not finally resolved in the mediation.
- Flexible, informal and can be organised at short notice.
- Successful mediation can allow parties to continue or resume their relationship.