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Alternative dispute resolution procedure options explained - choosing the best method
When dealing with a dispute – regardless of the nature of the dispute – legal action can be stressful and takes time and money to resolve. There are alternative methods to resolving a disputes, other than litigation, that can be more cost-effective, not so lengthy and are less confrontational. The choice of alternative dispute resolution depends on a number of factors, such as, the nature of the dispute and the relationship between the parties. Knowing the benefits of each option can make it easier to choose the best method.
Here, outline the options available to help you decide which may be best for you, including when it may be necessary to resort to litigation.
Read on to find out more:
What is alternative dispute resolution?
Alternative dispute resolution (ADR) provides a confidential and alternative method of tackling legal disputes which avoids going to court. Alternative dispute resolution methods reduce the time and costs. Alternative dispute resolution involves instructing a third party - a mediator or arbitrator - to orchestrate discussions between the parties with a view to resolving the dispute, thereby avoiding litigation.
Alternative dispute resolution can often be a swifter process than litigation, and as the discussions do not take place in a court setting, it can feel more relaxed and less confrontational. The less heavy-handed approach can help you to maintain a positive relationship with the other party.
Find out more about the benefits of alternative dispute resolution here.
Using mediation in a dispute
What is mediation?
Mediation is a common form of alternative dispute resolution and is mainly used when both parties are willing to communicate calmly. The mediation process involves a mediator who oversees the discussions and is trained to ensure that the discussions remain calm and reasonable and help the parties to reach a mutually beneficial conclusion in a composed manner. One of the key benefits of mediation is that communication between both parties can be re-established, allowing each side to put their view of the dispute and the impartial mediator to offer suggestions for resolution.
What are the key benefits of mediation?
Mediation is informal often cheaper and sometimes faster than litigation.
Mediation attempts to remove confrontation that often accompanies court proceedings.
During the process of mediation, both parties are able to explain their perspective openly in a setting that encourages good communication.
Who is it suitable for?
Mediation can be used for a range of disputes in both commercial and private conflicts. Read about the types of disputes mediation can be used for here.
Mediation is a suitable option if both parties are still willing to communicate in order to reach a mutually agreeable solution and wish to avoid the high court costs and a lengthy procedure. Mediation is often highly successful when both parties are prepared to work together. Read more about the benefits of mediation in our guide.
Giambrone & Partners has a close affiliation with the ADR Centre (a member of JAMS International), Italy’s first and largest provider of conflict management and alternative dispute resolution services. Find out more about Giambrone’s ADR lawyers here.
Using arbitration in a dispute
What is arbitration, and how does it differ from mediation?
Arbitration differs from mediation in that the aribitrator is able to make a legally binding decision. An arbitrator is a qualified person who is appointed to adjudicate. Unlike a mediator’s role, the arbitrator’s decision will be final and legally binding. A court order is required to enable enforcement of the decision. Arbitration is more formal than mediation; however unlike litigation, takes place in private with only the parties involved, their advisors and the arbitrator. Arbitration permits the parties to choose an arbitrator with specialist expertise relative to your specific type of dispute, and arbitration also allows you to choose dates and times that are convenient for you. Arbitration meetings can also take place virtually if required.
What are the benefits of choosing arbitration?
Efficiency. An arbitration hearing can be dealt with in just one week, compared to a court hearing which can take far longer. Once the hearing date is set, there is very little chance of it being cancelled, changed, or postponed, as can happen with court dates. This allows you to know when the dispute will be resolved, as well as not having your dispute played out in public as with open court.
You are able to choose an arbitrator yourself. This makes it possible to choose an individual with skills that match your own situation and issue.
You work closely with the same arbitrator. The arbitrator will work with you throughout the process and can liaise with your legal team directly to ensure a smooth dispute resolution process.
Who is it suitable for?
Arbitration is suitable if the parties believe that a measured discussion is not achievable. If tensions are running high and the parties are in the position where the option for calm and reasonable discussion has passed by. Like mediation, arbitration can serve as a low-cost and speedier solution compared to litigation. The arbitration process is frequently used in commercial cross-border disputes, such as debt collection and contractual disputes. It can also be applied to boundary disputes and those involving children. However, it should be noted that if a dispute involves the safeguarding of a child or a cross-border issue involving a child leaving their current jurisdiction, formal legal proceedings are required. Read about how arbitration can be helpful in family disputes here.
Find out more about Giambrone & Partners' arbitration services here.
Collaborative law
Collaborative law is also known as collaborative practice and is a legal process that is ideal for couples who have decided to separate or end their marriage. If you choose collaborative law, both you and the other party will have legal representation for each party, present in the room. Both party’s solicitors will work together to reach a mutually beneficial agreement. In collaborative law, both parties sign a contract undertaking to attempt to reach an agreement. If collaborative law does not lead to a mutual agreement, the only alternative is to revert to formal court proceedings.
Litigation
Litigation is legal action in a court of law to seek judgment in a dispute. It involves both parties engaging legal representatives to speak on their behalf and present the matter to the court. After the representations have been made by the legal representative of each party a judge will consider the law related to the issue and make a judgment. Depending on the nature of the dispute and the court in which the matter was heard it is possible to request leave to appeal to a higher court.
When to go to court and what to expect
The goal of the court is to examine the legality of the matter, the judge will base his or her judgment on law. Litigation is necessary if alternative methods of resolution, such as mediation and arbitration, have proved to be unsuccessful. There are certain types of disputes cannot be resolved through alternative dispute resolution, and will always need to be dealt with in court of law. The aim of litigation is not to satisfy one or the other party – it is to decide what is legal, what is correct in law, based on the evidence.
Giambrone provides a pragmatic and commercial approach. Our well-regarded litigation lawyers represent corporate and private clients across the spectrum of dispute from large complex cross-border commercial actions to smaller personal disputes. Giambrone can provide a thorough understanding of the different aspects of litigation across various jurisdictions and access the potential impact it can have on yourself, your family and your future.
Find out more about our litigation services here.
Dispute resolution procedures – frequently asked questions
How long does alternative dispute resolution take?
The length of time ADR takes is reliant on how long it takes you to come to an agreement – however, it can be much quicker than going to court.
When would mediation be best?
Mediation can be appropriate when the parties involved in the dispute have a vested interest in maintaining a relationship, for example if there is an ongoing beneficial business relationship or in a family matter.
What are the disadvantages of mediation?
Mediation may be the wrong option if the dispute has reached a point where tension is high and the parties involved are unable to communicate in a reasonable manner. In this situation it better to avoid a round table discussion to thrash out a solution and it is more appropriate to engage the services of an arbitrator who is able to make a legally binding decision.
Which ADR method is the best?
This depends entirely on the nature of your dispute and how well both parties are communicating. No one method eclipses the other.
Why should you choose ADR over litigation?
All methods of alternative dispute resolution are a less confrontational option than litigation and have the advantage of not being conducted in public arena of the court, where there is the possibility that your dispute may be reported in the press. However, depending on the nature of your dispute and the attitude of the parties involved, there may be no other option than to take legal action.
How Giambrone & Partners can help
Giambrone & Partners has extensive experience in complex alternative dispute resolution and has a track record of success. We provide access to a pragmatic and grounded approach to problem-solving with regard to dispute resolution services. Using sophisticated negotiation skills, we can help you to reach an agreement in the shortest time, avoiding the court proceedings. Our lawyers have considerable experience in managing extremely contentious, multi-jurisdictional disputes and provide expert advice and representation.
Our areas of expertise include property litigation, landlord and tenant, commercial litigation, employment disputes, building and construction disputes, debt-related issues and shareholder disputes as well as inheritance issues, and contested probate and wills. We can also advise on a range of other issues, including breach of contract, negligence claims and intellectual property disputes.
Contact us here to request a call-back or arrange an appointment.