Mediation & arbitration

Regardless of either party’s enthusiasm for having their ‘day in court’, it is now compulsory for both parties to a dispute to consider ADR first. Although not mandatory for disputes involving claims worth more than £10,000, courts can - and will - order parties to engage in mediation if appropriate.

Mediation

Mediation can be used to settle a dispute in a more conciliatory, less confrontational way which is why it is most effective when used by parties who are actively seeking an agreement. Mediators do not offer an opinion on the dispute; they are there to facilitate an agreement. They are able to put a positive interpretation on matters to help the parties reach an agreement that works for both sides. This is a more constructive approach than adversarial court proceedings which seek to find for one side only.

Mediators are independent, professionally trained individuals, many of whom are lawyers, who act as a mutual facilitator. Our experienced mediators can help you to reach a resolution without incurring the cost of pursuing a dispute through the courts.

Arbitration

Arbitration is a very flexible process. There may be a contractual agreement between the parties requiring them to arbitrate. But if there isn’t, they can still agree to arbitrate.

Written statements can be served quickly, necessary documents produced, and the arbitration concluded by an award within weeks – sometimes within days. If the matter is complicated and the parties want more time – this can be agreed.

Adjudication

Adjudication is a quick and relatively inexpensive way of resolving disputes, particularly those that arise on most construction contracts. Adjudication enforcement is the process whereby the successful party in an adjudication applies to the court to obtain a court order validating the adjudicator’s decision.

This is also a quick and relatively inexpensive process, and often results in payment being made or at least gives the successful party a judgment debt that can be enforced against the debtor.

It is a fast-track procedure, often based on written submissions, and the meeting and hearing can be held either face to face or virtually.

Fixed price tailored packages

A fixed price can be agreed if the parties are clear about what they want. Generally, costs are significantly lower than pursuing claim through the courts. As an example, we could agree a fee of, say, £500 (+VAT) per party for a telephone mediation based on an exchange of written statements.

For adjudications, requesting a detailed explanation for the adjudicator’s decision can increase both the fees and the time taken to resolve the dispute. Although in practice most parties normally want an explanation, fees can be controlled if the reasons for the adjudicator’s decision are limited to no more than four sheets of A4 paper. A simple adjudication over compliance with notice requirements under a building contract could be adjudicated for the low thousands of pounds.

Again, with the arbitration, if the parties will agree a fixed timescale, a limit on submissions and the number of documents and a short statement of reasons, a fast-track arbitration could be agreed for £4,000-5,000 (plus VAT) per party.

In the case of adjudication and arbitration, the adjudicator or arbitrator will decide which party ultimately pays the fees.