Disputes can arise in the course of our personal and professional lives. Most of the time they are easily resolved between the parties and rarely spoken of again, other times they can be long, drawn-out affairs that are as equally stressful as they are time-consuming.
In contentious situations, it is essential to have clear objectives and an effective strategy to achieve them from the outset and throughout. Commonly shared objectives for parties in the midst of a dispute are to protect their legal rights and to resolve the dispute in the most cost-efficient way. Quite often, parties in a dispute try to negotiate and discuss the dispute at hand in an effort to come to a settlement or compromise between themselves. However, not all disputes are able to be settled through negotiation, and indeed, not all parties come to the negotiating table in good faith.
If a dispute is not settled by negotiation between the parties, then they can be resolved by litigation or an alternative form of dispute resolution such as arbitration and mediation.
Put simply, litigation is the process by which parties to a dispute can have their case decided on by a court. It is essentially, the process of taking a case between parties to be discussed in a court of law so that an official judgment can be made about it.
The term ‘litigation’ often conjures up images of lawyers conducting sharp, verbose battles in the arena of the court. Although this can be part and parcel of the litigation process, the actual battle is usually won in the relative quiet of the solicitors office. Litigation is quite a formal procedure and is subject to various rules and guidelines which dictate how the matter is to proceed. As well as developing and adapting a cogent and reasoned case narrative in favour of your case, a litigator will ensure compliance with the rules and guidelines throughout the process. A litigator will be fluent at interpreting and implementing these rules and along with an in-depth understanding of the legal technicalities of the dispute at hand, will be able to strategise and use certain nuances in the law to gain a tactical edge and strengthen the case at hand.
Litigation can be quite a costly and time-consuming method of dispute resolution, however, having a dispute resolved by litigation is arguably the most robust solution. Once a court has handed down its judgment on a matter its authority is binding. This often provides security for the parties in that the rights and remedies awarded have been sanctioned and ratified by a court, and if need be, can be enforced through the courts.
Arbitration is a form of dispute resolution that is commonly seen as the preferred method of dispute resolution in commercial contracts. Arbitration is essentially a non-judicial process in which a neutral third party is appointed for resolving the dispute at hand.
There is typically more flexibility in the arbitration procedure as the conduct for arbitration is often agreed upon between the parties. As such, it is often perceived that arbitration can be cheaper and faster for businesses. In practice, arbitration can sometimes be just as costly and time-consuming as litigation. Additionally, the flexibility arbitration can afford the parties can lead to frustration if one party continually fails to comply with the procedural timetable agreed. In litigation, the court has greater case management powers and can impose sanctions and penalise a party who is in breach of the process.
There are several other factors by which arbitration has perceived advantages over the litigation process.
For example, when the subject matter of the dispute is highly technical, an arbitrator with appropriate expert knowledge can be appointed. Although expert evidence can be submitted in litigation, it is not possible to choose a judge or request a judge with a particular expertise.
Also, arbitral proceedings and an arbitral award are not on the public record and are kept confidential. This makes arbitration quite an attractive method of dispute resolution for companies and corporations where the subject matter of the dispute may raise negative press or tarnish goodwill or reputation.
Additionally, the outcome of an arbitration is typically binding unless the parties have agreed to advisory arbitration. A binding arbitration decision does not provide for an appeal, whereas in litigation a party can attempt to appeal the decision.
Furthermore, the ease of enforcement of an arbitral decision is often an important deciding factor in favour of arbitration. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) provides an established enforcement regime for international arbitration awards. The vast majority of states have signed up to the New York Convention, and there are limited grounds for a signatory state to refuse to recognise an arbitration award. There is no real equivalent for the enforcement of court judgments as there is difference in legislation in each jurisdiction and this can make enforcement an issue. For example, there is currently no agreement between Russia and the UK for the reciprocal enforcement of court judgments. This means that a Russian court can refuse to recognise an English court judgment, but it will recognise an arbitral award made in England under the New York Convention.
It is worth remembering that arbitral awards are confidential to the parties and do not give rise to any binding precedent. Therefore, in a case where a ruling on a point of law is required, litigation would be the preferred method of dispute resolution.
Arbitration shares many commonalities with litigation. Statements of case, witness statements and experts reports are prepared and usually followed by an oral hearing where evidence can be presented and cross-examined. Having a solicitor throughout the arbitration process is invaluable, ensuring that your case is presented in the correct way to ensure you have the highest probability of success.
Mediation is a form of dispute resolution whereby an independent person (the mediator) attempts to assist parties to a dispute come to an agreement. Typically mediation is significantly cheaper than litigation or arbitration, is quicker, and can be less stressful.
In mediation, an independent mediator will listen to both sides of the dispute and attempt to help you come to an amicable agreement between the parties. A mediators decision is not binding, but is an efficient method of dispute resolution when parties want to resolve the dispute informally in good faith. It is often a suitable method of dispute resolution between individuals who are connected in some way or another, such as business partners, spouses, or neighbours. Additionally, it is a suitable form of dispute resolution where a creative or innovative solution is required which may not be able to be addressed by traditional judicial remedies. Mediators are to remain impartial throughout the course of mediation and parties to a dispute have to agree to the proposed settlement.
The role of a solicitor in mediation can often be vital to how successful the mediation process will be. The mediation process is facilitated by the parties having a clear understanding of the law, as any misplaced assumptions can be adjusted at an early stage. A perception of what 'fair' means is likely to be informed by what the law is. As such, an early meeting with a solicitor will help each person to clarify their priorities and also to identify the areas where they are prepared to compromise.
A solicitor will also assist a party to a mediation in the disclosure of documentation and the review and analysis of documentation from the other party to the dispute, helping narrow the issues in dispute and using evidence to strengthen the party’s claim. Taking legal advice from a solicitor throughout the mediation process can not only help protect your interests but ensure you have you a clear understanding at the outset of the parameters in which a settlement might be reached and ensure the mediation process is successful as a method of dispute resolution.
Our Dispute Resolution services
At Bennett Oakley Solicitors, we have an robust and experienced dispute resolution team well versed with all forms of dispute resolution including litigation, arbitration and mediation. Our approach is to think strategically from the outset and throughout which allows us to present our clients with options for the most efficient solution with the least possible disruption to their business and personal lives. We will identify the risk areas for you and advise you promptly and succinctly on protecting both your legal rights and your bargaining position. We pride ourselves on spotting opportunities that others miss and exceeding clients’ expectations of what they have traditionally expected from Dispute Resolution lawyers.
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