Alternatives to Litigation

Important Disclaimer: These notes are a general statement of the law – there may be errors or omissions. I do not accept responsibility for any loss resulting from reliance on them – please see my full disclaimer

Our advice is that you will almost always benefit from avoiding litigation at virtually any cost – it is often better to walk away from a dispute than to try to enforce your rights. In every instance the main beneficiaries of litigation are lawyers.

If you cannot afford to walk away and cannot resolve the dispute by negotiation, there are alternatives to court proceedings that may be better.

Avoiding litigation

Arbitration is a procedure whereby both sides to a dispute agree to let a third party, the arbitrator, decide. In some instances, there may be a panel. The arbitrator may be a lawyer, or may be an expert in the field of the dispute. He will make a decision according to the law. The arbitrator’s decision, known as an award, is legally binding and can be enforced through the courts. In the United States, court-annexed non-binding arbitration is widely used. The finding of the arbitrator becomes a binding order of the court if neither party seeks a rehearing by a judge.
Early Neutral Evaluation is a process in which a neutral professional, commonly a lawyer, hears a summary of each party’s case and gives a non-binding assessment of the merits. This can then be used as a basis for settlement or for further negotiation.
Expert Determination is a process where an independent third party who is an expert in the subject matter is appointed to decide the dispute. The expert’s decision is binding on the parties.
Mediation is a way of settling disputes in which a third party, known as a mediator, helps both sides to come to an agreement which each considers acceptable. Mediation can be ‘evaluative’, where the mediator gives an assessment of the legal strength of a case, or ‘facilitative’, where the mediator concentrates on assisting the parties to define the issues. When a mediation is successful and an agreement is reached, it is written down and forms a legally binding contract, unless the parties state otherwise.
Conciliation is a procedure like mediation but where the third party, the conciliator, takes a more interventionist role in bringing the two parties together and in suggesting possible solutions to help achieve an agreed settlement. The term ‘conciliation’ is gradually falling into disuse and the process is regarded as a form of mediation.
Med-arb is a combination of mediation and arbitration where the parties agree to mediate but if that fails to achieve a settlement the dispute is referred to arbitration. The same person may act as mediator and arbitrator in this type of arrangement.
Neutral fact finding is a non-binding procedure used in cases involving complex technical issues. A neutral expert in the subject matter is appointed to investigate the facts of the dispute and make an evaluation of the merits of the case. This can form the basis of a settlement or a starting point for further negotiation.

Other courses of action

Ombudsmen are independent office holders who investigate and rule on complaints from members of the public about maladministration in Government and in particular services in both the public and private sectors. Some ombudsmen use mediation as part of their dispute resolution procedures. The powers of ombudsmen vary. Most ombudsmen are able to make recommendations, only a few can make decisions that are enforceable through the courts.

Utility Regulators are watchdogs appointed to oversee the privatised utilities such as water or gas. They handle complaints from customers who are dissatisfied with the way in which they were treated by a supplier.

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