Alternative Dispute Resolution Solicitors
Commercial disputes often require more than a technical assessment of the legal merits. The merits must be considered alongside the wider commercial picture including the value of the dispute (or what is at stake), the costs and risks associated with pursuing or defending the dispute, the demands on management time, as well as the impact of the dispute on commercial relationships and reputation, and ultimately the objectives the business is seeking to achieve.
Alternative dispute resolution (ADR) refers to the processes such as negotiation and mediation through which individuals and businesses can seek to resolve their commercial disputes outside of the litigation process. The potential advantages of ADR are the reduction in time, costs and uncertainty associated with litigation. In addition, other important advantages to ADR are that it often gives parties greater control over the process of resolving the dispute and the outcome of the dispute including the specific terms of settlement to be agreed.
ADR and litigation are not mutually exclusive; negotiation or mediation can take place before court proceedings are commenced or alongside ongoing court proceedings, giving the parties to a dispute the opportunity to explore a commercially effective resolution at any stage of the process.
The courts actively encourage parties involved in litigation to explore ADR for the purposes of seeking to settle their disputes outside of court where possible.
At JMW, our team of commercial disputes solicitors have substantial experience of resolving disputes through negotiation, mediation and other forms of ADR to achieve successful outcomes on the best commercial terms. We combine rigorous analysis of the legal merits of a dispute, with a clear understanding of the wider commercial considerations, and help our clients to negotiate a resolution from the strongest position. We help our clients to secure the most favourable resolution and one which is aligned with their objectives.
Our focus is consistently aimed at achieving a commercially effective outcome while preserving our clients’ legal position and wider business interests. Where settlement is not achievable, our clients continue to have the support of a large and experienced commercial litigation team who are capable of advancing disputes successfully through the courts.
To discuss your and the options available, please speak to our Commercial Litigation team today on 0345 872 6666, or complete our online enquiry form and we will call you back as soon as we can.
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How JMW Can Help
When you instruct JMW, you enlist the expertise of a specialist team of commercial litigation solicitors who regularly use ADR to resolve many types of disputes across a broad range of sectors. Our solicitors represent clients nationwide and internationally, and act for individuals, directors, shareholders, professionals and businesses of all sizes including PLCs. We have a clear understanding of how to find bespoke commercial solutions to our clients’ legal problems.
Our expert team regularly advises clients on ADR, particularly negotiation and mediation but we can also support you with:
We work closely with our clients to determine the most appropriate approach and agree a case strategy with you. This includes a careful analysis of the merits of the case, an assessment of the evidence available, and full consideration of the different options available to achieve a resolution keeping in mind the anticipated costs, any risks and the wider commercial implications of pursuing the matter.
We are renowned for our professionalism and pragmatism, and we have a strong reputation in commercial disputes. Our team is also recognised in the Legal 500 for our work in high-value, complex litigation. While we will explore every appropriate opportunity to achieve a commercial effective resolution, we will not hesitate to pursue your case robustly through the courts where settlement is not achievable.
Meet Our Team of Alternative Dispute Resolution Solicitors
JMW's alternative dispute resolution solicitors offer expert legal support and services to help businesses resolve disputes quickly. Our approach to ADR delivers tailored solutions that meet our clients' objectives without the need for lengthy court processes.
Case Studies
JMW mediates in building contractor dispute
We successfully mediated a dispute between a development company and its building contractor, securing substantial damages for our client without a lengthy trial.
JMW advises on Alternative Dispute Resolution
We successfully represented over 20 clients in a multi-party mediation with a property developer, achieving a favorable settlement and avoiding a costly trial.
JMW negotiate amicable settlement and recover financial losses
JMW was instructed by a wood flooring producer after an international architecture company cancelled a multi-million pound purchase order. We recovered the majority of the client’s financial losses without expensive litigation.
How Does ADR Work?
Alternative dispute resolution provides a range of processes through which parties can seek to resolve a dispute as an alternative to, or alongside, formal court proceedings. The appropriate form of ADR will depend on the nature and complexity of the parties, the parties involved and their objectives, as well as the stage the dispute has reached. When successful, ADR can be extremely effective in reducing the time and costs associated with resolving a dispute through the courts, as well as the uncertainty of taking a dispute to trial.
Negotiation and mediation give you the opportunity to explore different possible solutions for a resolution as well as greater control over the timing of and process through which the parties engage in settlement discussions. For example, with mediation, the parties can agree who should be instructed as the mediator (based on factors such as their expertise in the subject matter, their experience and their mediation style) and the parties can explore flexible solutions by way of an outcome, which simply may not be available through the courts. Importantly, depending on the process used, ADR may also enable the parties to explore a resolution privately and preserve the confidentiality of commercially sensitive matters, keeping them outside of the public domain.
What Are the Different Types of ADR?
There are several forms of ADR:
Negotiation
Negotiation is a flexible process and usually takes place through direct discussions, telephone calls, correspondence or meetings. It is commonly conducted by and between the parties’ legal representatives although senior stakeholders or other authorised representatives of the parties may negotiate directly with their solicitors advising behind the scenes. Negotiation can take place at any stage including before court proceedings are issued or in parallel with ongoing litigation.
In most cases, negotiations are conducted on a “without prejudice” basis, which means that anything said or written in the course of those discussions cannot be referred to in court as evidence of liability, unless or until the conclusion of the matter when costs are being decided by the court. The “without prejudice” nature of negotiations enables the parties to explore possible settlement terms without any admissions or concessions, made during those negotiations, being drawn to the court’s attention. There is no limit to the number of attempts the parties can make to reach an agreement through negotiation and the parties can continue to negotiate throughout the dispute including during court proceedings and up to trial.
Mediation
Mediation is a private and confidential process in which an independent third party, known as a mediator, helps the parties explore whether an agreed resolution can be achieved. The mediator does not determine a winner or a loser or impose an outcome. Instead, the parties retain control over whether to settle and the terms on which any settlement is agreed.
The mediator’s main role is to facilitate constructive discussions between the parties, help identify the issues preventing settlement and assist the parties in exploring possible solutions. The mediator may also encourage each party to assess the strengths and weaknesses of their respective positions and any wider commercial implications.
Mediation can take place at any stage once a dispute has arisen, including before or alongside ongoing litigation. It allows the parties to explore flexible and workable terms of settlement that they are prepared to accept and which may not be available through a court decision.
The discussions that take place during mediation and any associated documentation are generally treated as “without prejudice”, meaning that they cannot be referred to in any court proceedings until costs are discussed at the end. This allows the parties to make possible settlement terms without admissions or concessions being later placed before the court as evidence of liability. If settlement at mediation is not achieved, the parties can continue to pursue litigation (as well as other forms of ADR) in respect of the dispute.
Arbitration
Arbitration is a private process in which the parties appoint an independent third party, known as an arbitrator or tribunal of arbitrators, to hear the case and determine the issues. The arbitrator considers the parties’ evidence and legal arguments before issuing a decision, known as an award, which is generally final and legally binding.
Arbitration is often used where the parties’ contractual documentation requires disputes to be resolved in this way as opposed to through the courts. Unlike mediation, the arbitrator determines the outcome rather than helping the parties to negotiate an agreement. Arbitration can offer greater privacy and procedural flexibility than court proceedings. As the procedure and timetable can be tailored to a particular dispute, arbitration may also provide a quicker route to a binding determination than pursuing complex litigation through the courts. This can make arbitration particularly suitable for complex commercial and international disputes.
Arbitral awards may be recognised and enforced internationally under established legal frameworks although the process and grounds for enforcement will depend on the relevant jurisdiction.
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Early Neutral Evaluation
Early neutral evaluation enables the parties to obtain an independent and informed assessment of the merits of a dispute, or of a particular issue within it. It can take place privately, with the parties jointly appointing an independent and appropriately qualified evaluator, or as part of court proceedings, with the evaluation undertaken by a judge.
The evaluator provides an objective view of the parties’ respective positions but does not ordinarily impose a binding determination. The process can help to clarify or narrow the issues in dispute, identify strengths and weaknesses in the evidence or legal arguments and provide a more realistic basis for settlement discussions.
Early neutral evaluation may be particularly useful where the parties have reached an impasse or where an independent view on a key legal, factual or technical issue would assist them in making informed decisions about settlement and the future conduct of the dispute.
What Are the Benefits of the ADR Process?
The potential benefits of ADR will depend on the process used and the circumstances of each individual dispute. Where it is successful, ADR can present a more advantageous outcome for parties than going through conventional court proceedings for a variety of reasons. It can reduce the time, stress, disruption and resources dedicated to pursuing or defending lengthy court proceedings. It can also create a legally binding outcome which offers certainty and finality for the parties.
Negotiation and mediation give the parties greater control over the process and the outcome as they can allow the parties to agree flexible and creative commercial terms tailored to their particular circumstances and objectives, often including solutions that a court simply would not have the power to order. Also, depending on the nature of the ADR, it can allow the parties to discuss commercially sensitive matters in a private and confidential forum.
Where ADR is explored at an earlier stage and it results in settlement, it may also reduce the overall costs of resolving the dispute by avoiding some or all of the steps required to take the matter to trial.
Whereas traditional court proceedings can take years to resolve, ADR can be completed in a short period of time and at an earlier stage, avoiding delays with the courts and reducing disruption to the business and the demands placed on management time.
FAQs About Alternative Dispute Resolution (ADR)
- Do I need an ADR solicitor?
Although parties to a dispute are not always required to have legal representation in negotiation or mediation, obtaining specialist legal advice can be important particularly where the value of the dispute is high or the matters in dispute are complex.
We can help you to assess the strengths and weaknesses of your position, and help you consider any proposed settlement terms in view of the potential risks associated with not reaching settlement and continuing the dispute. We can also draft a settlement agreement for you and help you to avoid agreeing to unfavourable terms by detailing the full legal implications.
Legal representation is particularly important in arbitration which is a formal and legally technical process resulting in a binding decision. We can help you prepare your position in the arbitration on the strongest legal basis and deal with the evidence, legal submissions and procedural issues. We can also attend the final hearing and advise you throughout.
At JMW, we will provide a realistic assessment of the available options and advise on the approach most likely to achieve your objectives. Where an acceptable settlement cannot be reached, we will not hesitate to advance your case robustly through arbitration or the courts.
- How much does an ADR solicitor cost?
The cost of legal advice and representation will depend on the form of ADR used, the value and complexity of the dispute (including the number of parties involved), the amount of preparation required and the stage at which the process takes place.
Where negotiation or mediation is explored at an early stage and results in settlement, it can significantly reduce the overall cost of resolving the dispute by avoiding some or all of the work required to take the matter to trial. However, the cost and extent of any cost saving will depend on the circumstances of the case, the timing of the ADR, the stage reached in any court proceedings, and whether settlement is achieved.
Arbitration can be a formal and costly process and should not be assumed to be cheaper than court proceedings. However, its privacy, procedural flexibility and potential to provide a quicker binding determination may make it appropriate for certain disputes.
We provide our services on a private fee-paying basis. Once we understand the nature of your dispute and the support you require, we will explain the likely scope of our work and the basis on which our fees will be charged.
A guide to commercial mediation for business
Our guide to commercial mediation for businesses will help you to navigate disputes effectively, prepare strategically, and achieve a resolution.
Talk to Us
To discuss your dispute or any of the alternative dispute resolution options, please call JMW on 0345 872 6666. You can also complete our online enquiry form to request a call back from a member of the team.