Clients often ask at what stage barristers become involved in their matter. One way to think about it is that solicitors are like general practitioners and barristers (also called Counsel) are like specialists who specialise in particular areas of law/s…
Going to court might be the most well-known means of resolving a legal dispute. However, there are other options available outside of court. These options are types of alternative dispute resolution. Each involves a different level of assistance from a third party, from facilitating discussion through to making enforceable decisions.
Why choose alternative dispute resolution instead of going to court?
The court system can be costly and time-consuming. Also, your matter will be documented on public record. While some matters inevitably end up going to trial, others have the potential to be resolved with much less hassle. Even if a trial has commenced, alternative dispute resolution can still be started. Below is an outline of some of the alternatives to court which fall under the umbrella of alternative dispute resolution (ADR).
Mediation is when a qualified mediator facilitates a resolution between the parties. The mediator’s aim is to facilitate discussion so that the parties can come to their own agreement. They will generally outline the issues and relevant options, providing a good preliminary step in resolving a dispute.
Conciliation also involves a third party – the conciliator – however, they take a more active role in resolving the dispute. The conciliator can offer advice to the parties, but the parties do not have to accept it.
In arbitration, each party presents their arguments and evidence to the third party – the arbitrator. The arbitrator then makes a determination that is binding and enforceable between the parties. It is a private and potentially confidential determination of a dispute. Arbitration gives the most finality of the alternative dispute measures as the decision is final.
Expert Appraisal and Expert Determination
Due to the complex nature of some disputes, it can be helpful to have the assistance of an expert. In expert appraisal, an expert is chosen by the parties to investigates the issues. The expert provides advice to the parties about the facts, potential outcomes and ways of implementing them. Expert determination is similar to arbitration, however the arbitrator is an expert in the subject matter of the dispute. This can be beneficial when it comes to dealing with intricate and specialised disputes.
Early Neutral Evaluation (ENE)
ENE exists to resolve matters earlier on than with the above forms of ADR. In ENE, each party presents their arguments and evidence to a third party who makes a determination based on the broad issues involved. They also present the most efficient way to resolve the dispute. The practitioner does not determine the outcome, but can help parties to come to an effective resolution.
To discuss your legal matter including the full spectrum of options available to you, please get in touch.