Alternative Dispute Resolution
What is Alternative Dispute Resolution?
For centuries, court was the only formal means of resolving legal disputes. Alternative methods of dispute resolution (“ADR”), often called ‘Non-Court Dispute Resolution,’ have developed over the last few decades, with most still relatively unknown.
The key types of ADR are:
Mediation – Family Model
Mediation – Commercial Style*
Early Neutral Evaluation
Private FDRs (family only)
Arbitration and Family Arbitration (IFLA Scheme)
*Is suitable in some Family Matters
There are many other types of ADR, some more suited to specific types of legal dispute than others, for example collaborative law is used mainly in family disputes. ADR methods tend to be faster, less formal, and mostly, cheaper than court. More imaginative solutions are possible and both personal and commercial relationships can be preserved.
Why should I use ADR rather than court?
Now especially is the time to consider ADR. Coronavirus has meant that all courts have been physically closed and urgent business dealt with remotely, either by telephone or video. This means that there is a substantial backlog of cases which will likely increase when lockdown is eased in the courts. When it is ended, priority will continue to be given to the most urgent matters. Litigants are urged and encouraged to find alternative means of resolving their disputes, because they will have a long wait before the court is able to do so. Here is the nitty gritty-
- Most courts are closed
- Courts that are open are under severe strain
- Many hearings have been adjourned. Others have been put on hold. The courts are not providing new dates for those hearings
- When courts do re-open, the current backlog will become a bottleneck
- Courts that reopen will not be operating normally for some time
- It will take longer to get a hearing listed
- Many more hearings will be conducted remotely
- Remote hearings take up more court time – meaning the courts will be handling fewer hearings
- More delay than currently exists
Courts have encouraged ADR for decades. Many litigants however still crave “their day in court.” As a result of COVID-19 that day in court will be considerably delayed. When that day eventually arrives, the litigant will likely be far away from the courtroom, attending by video, or even telephone. The advantages of ADR have never been so attractive. Courts will want to be satisfied that litigants have properly explored ADR. ADR is not just more attractive; failure to try it is likely to have consequences.