Going to court is one of 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?
The court system can be costly and time-consuming. Your matter will also be documented on the 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).
In essence, mediation is an informal conflict resolution process brought before an independent, neutral third party. Mediation gives the parties the opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement. The mediator will guide discussions, ask questions, and help facilitate agreements. Typically, however, they will have no authority to make a binding decision unless both parties agree to give the mediator that power.
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 about how to solve the dispute, but the parties do not have to accept this.
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 typically confidential determination of a dispute. Arbitration is similar in essence to court, as the parties are bound by the decision. However, arbitration is much less formal and expensive than court, and thus can provide more flexible solutions and a less intimidating process.
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 investigate 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 third party is an expert in the subject matter of the dispute. This can be beneficial when it comes to dealing with intricate and specialised disputes, such as family law or corporate law matters.
Early Neutral Evaluation (ENE)
ENE exists to resolve matters earlier 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.