Alternative Dispute Resolution

Alternative dispute resolution (ADR) procedures have the significant benefit of enabling you to avoid court proceedings, therefore reducing disruption to business and saving money on litigation costs. At JMW, we are highly experienced in all dealings relating to ADR and we will listen to your needs and pursue the appropriate method of resolving your dispute with the minimum of hassle and cost to you and your company.

Speak to our experts in alternative dispute resolution procedures today to find out more about how we can help. Simply call us on 0345 872 6666 or complete our online enquiry form and we will give you a call back as soon as we can.  

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Why Choose JMW?

We are highly experienced and successful mediators. By instructing JMW, you are enlisting the help of a specialist law firm and independent third-party mediator that can significantly boost your chances of resolving a dispute and achieving a positive outcome.

We are renowned for our professionalism and will provide the expert legal support you need throughout the process, giving you the best possible chance of a favourable outcome.

Our team has become one of the largest single office litigation departments in the North West and we are able to take on - and succeed with - the most complex of disputes. We are able to offer a combination of sound commercial advice and traditional legal analysis.

Types of ADR Procedure

The main options when it comes to alternative dispute resolution procedures are:


Adjudication is a process during which parties in dispute appoint a person to consider the evidence and arguments submitted by them both, which then results in a decision that determines the rights and obligations of the parties in dispute.

The adjudication process was introduced by the Housing Grants, Construction and Regeneration Act (Construction Act) in 1996. It has been used and refined over a period of 20 years. The process in construction-related disputes is conducted outside the court framework. When conducted properly, it is speedy, efficient and much cheaper than court proceedings.

Adjudication decisions are binding, but only on an interim basis. They can be adjusted or reversed by subsequent arbitrations or court actions. They can and should be concluded within 28 days of the date of referral and there is no limit on the value of claims that can be made. Such a fast and judicially supported process is understandably attractive to claimants.


Arbitration is a private procedure and form of alternative dispute resolution. It involves the use of an independent third party commonly known as an arbitrator, and is in many cases an agreeable alternative to legal proceedings. It can be a useful tool in resolving business disputes of all kinds.

Many business contracts will contain an arbitration clause, which sets out the right and obligations of each party to enter arbitration should a dispute arise. There may also be a statutory requirement for the parties to engage in arbitration proceedings. Different contracts will contain varying levels of detail; some contracts will state an obligation to use arbitration, others will state the exact type of arbitration, how many arbitrators might be involved and the venue of the discussion.

The arbitrator appointed is under a duty to act fairly and impartially between the parties. Their function is like a judge in that they consider the parties' submissions and the evidence and evaluate the merits of the case. They are required to decide issues of liability and, if applicable, provide an indication of damages. The decision reached by the arbitrator (known as the 'arbitral award') is similar to a judgment in litigation, in that it is final and binding (with only limited scope for challenge).

The types of remedies available to an arbitrator include the payment of money declarations as to any matters needing to be determined in the proceedings, making orders requiring a party to do something or stop doing something, and deciding the allocation of the arbitration costs between the parties.

Advantages of Arbitration

Arbitration can be effective for the following reasons:

  • Before the appointment of the arbitrator, the parties generally have the ability to specify the characteristics they require the arbitrator to possess. These could include industry background and relevant expertise and experience. This is particularly important where the subject matter in dispute is complex or involves technical issues that require a higher degree of expertise
  • Unlike court hearings, which are held in public, arbitration hearings take place in private. The parties can also agree confidentiality in respect of the arbitral awards, and the parties will be bound by their duties of confidentiality
  • Generally, arbitration awards are binding on the parties and the options for challenging them are extremely limited  
  • Awards made in arbitrations are recognised and enforceable in more countries than English court judgments and so it is relatively easy to enforce the award abroad (so long as the country in which the enforcing party wishes to enforce is a member of the relevant convention)
  • Some or all of the costs of arbitration are generally awarded to the successful party

Disadvantages of Arbitration

The potential disadvantages associated with arbitration include:

  • Generally, only the parties in an arbitration agreement can be compelled to arbitrate. A third party can only be joined to an arbitration if the parties expressly consent to the arbitration clause applying to the third party and the third party agrees to be bound by it
  • It is a misconception that arbitration is cheaper than court litigation. It is a private process that is generally expensive, particularly as in addition to a party's legal fees there are also the arbitrator's fees and tribunal fees to pay
  • By virtue of the contentious nature of any dispute, parties can often fail to cooperate with each other, resulting in unforeseen delays and additional wasted costs
  • As it is difficult to challenge or appeal an arbitral award, a party may have limited recourse to deal with an unsound decision


Mediation is one of the most commonly-used methods of ADR and has a high rate of success in all kinds of commercial disputes and other business disagreements. Mediation can take place at any stage once a dispute has arisen (provided the parties agree to mediate), including after the commencement of legal proceedings.

The legal process of dealing with business disputes can be difficult; allegations are made, counter allegations or denials are issued in response, and the prospect of a constructive dialogue between the parties becomes harder and harder to imagine. Mediation introduces an experienced, neutral professional, a mediator, to a situation, allowing all parties to explore whether a dispute can be resolved without legal proceedings.

The mediation process is confidential and is conducted 'without prejudice'. Therefore, anything that is said at the mediation cannot be repeated to anyone who was not present. Significantly, if a settlement is not reached at mediation, the trial judge will not be told about what was said or done during the mediation.

Mediation will only work if the parties have given proper consideration of:

  • The merits (in terms of the legal analysis and the balance of the evidence available) of their own and their opponent's respective positions
  • The benefit that would be gained from pursuing or defending the claim in the courts
  • The likely costs of pursuing litigation

Advantages of Mediation

The benefits of mediation include:

  • The rate of success in mediations means that (statistically) parties who mediate are more likely to settle and avoid the expense of commencing or continuing court proceedings
  • Usually, if a settlement can be reached, it is achieved on the day of the mediation itself, with binding terms being agreed as the final part of the process (where a settlement cannot be achieved on the day, it is frequently the case that the parties reach a settlement shortly afterwards, having reflected on the mediation process)
  • The involvement of a neutral party creates the opportunity for an exchange of views between the parties that could not otherwise be had. The parties can choose the mediator themselves (contrary to the courts appointing a judge) and ensure that someone who will understand any technical aspects of the dispute is appointed to facilitate any complex discussions that may need to be had
  • Mediation is confidential, so no-one outside of the process - particularly a judge if a settlement does not arise - should know what is said. This usually enables the parties to speak more freely, which in turn helps them to find common ground

Disadvantages of Mediation

The disadvantages of mediation can include:

  • One (or both) of the parties may not take the process seriously and simply use it as an information-gathering exercise, to assist in pursuing/defending the legal claim
  • If a settlement is not reached, the cost of the mediation process will be a significant expense that the parties will have to bear, in addition to the costs of the court proceedings

Expert Determination

Expert determination is a binding and effective means of determining disputes, specifically those of a technical nature. If you are involved in a business dispute that hinges on a very specialist or technical point, perhaps the workings of a certain piece of technology or the value of an item, expert determination could help.

Expert determination will usually be relevant where a specialist or technical point is in dispute, particularly, for example, when some form of valuation or an expert professional opinion is required to resolve a dispute.

While expert determination can be used on an ad hoc basis, it is a mechanism most likely to be provided for in commercial contracts. Clauses relating to expert determination can be found in certain contracts dealing with, for example, service charge or rent reviews, the sale of a company and freehold land, among others. In these examples, the principal agreement will often provide for the appointment of a relevant expert in the event of a dispute. It is important to check for and consider any such clauses in a contract when a dispute arises.

Expert determination involves both parties selecting a suitable expert (this may already be predetermined by contract) to decide the case for them, with the understanding that both parties will accept the expert's decision.

The expert's authority, powers and duties will be determined by agreement of the parties. Generally, in most cases the process will involve each party providing submissions to the expert, followed by questions and replies together with disclosure of documents. This is a transparent process, so far as it allows both parties to have sight of the documents the expert will use to make a final decision.

Advantages of Expert Determination

The benefits of expert determination are that:

  • It allows for the appointment of an expert in the relevant field to resolve the dispute
  • The process is relatively quick, usually more so than arbitration and litigation
  • Generally, costs are much less
  • It affords flexibility, using tailor-made procedures
  • If an expert does not exercise the required skill and care in making the decision, the parties can sue the expert in negligence
  • The process is confidential and binding to all parties, providing a degree of certainty and security

Disadvantages of Expert Determination

There are several things to bear in mind when considering expert determination:

  • It has to be used in the right circumstances; for example, the process is less effective in cases involving significant factual disputes due to the amount of documentation and the burden of witness evidence
  • A poorly drafted expert determination clause can lead to unnecessary costs, delay and uncertainty
  • Furthermore, the expert's powers are wholly determined by the contractual provisions with no fall-back procedure
  • The decision of an expert cannot be enforced in the same way as a court order; therefore, in the event of a breach by one party, court action would be required

Expert determination is an effective and valuable form of dispute resolution, if implemented in the right circumstances. It is essential that contacts providing a mechanism for expert determination are drafted carefully to allow the benefits stated above to take effect in the event a dispute arises.


Conciliation involves the appointment of a third party to help steer negotiations towards an amicable conclusion and, ultimately, achieve a settlement. For more information about this area of law and the services we offer, head to our conciliation page.

Talk to Us

JMW is able to assist with alternative dispute resolution procedures of all kinds. To find out more about the services we provide and how we can help to bring your disagreement to a satisfactory conclusion, either call us on 0345 872 6666 or complete our online enquiry form and a member of the team will get back to you. 

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