By Emma Hughes-McEwan, Managing Associate, Ince
Recent media headlines have highlighted the delays in courts hearing trials in both criminal and civil proceedings. Prior to March 2020, the courts were already experiencing delays in listing hearings and trials, and this delay was further exacerbated by the Coronavirus pandemic.
As the court are now undertaking trials and hearings via video and telephone; either in their entirety or as hybrid hearings (where some parties may attend virtually and some in person) – the courts are beginning to get back on their feet.
However, if you are looking to issue new Court proceedings, it is envisaged that the trial date will be listed at least 18 months after the issue of proceedings. Nevertheless, you can avoid lengthy waiting times and proceedings by utilising methods of Alternative Dispute Resolution.
What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) are both binding and non-binding mechanisms which seek to resolve a dispute between parties outside of the Court process. However, in some cases, these mechanisms can run in parallel with Court proceedings.
There are various forms of ADR including, but not limited to:
The most suitable form of ADR will depend on various factors; from the facts of the case to the parties involved.
What are the benefits of Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) seeks to reduce the costs and time spent preparing for and attending to Court trials, while avoiding lengthy delays awaiting Court dates.
Whilst ADR comes with its own costs including Mediators fees for Mediation, Arbitrators fees for Arbitration or even simply Solicitors fees for negotiation these can be far less than the total cost of preparing for and attending Trial as well as the lead up and Directions which have to be completed on its course.
Whilst allowing time for ADR may risk delaying a Trial, in circumstances where the Courts are already experiencing delays, now may be the best time to investigate these Alternative Dispute Resolution mechanisms.
In many cases, ADR is fully confidential, therefore parties are able to openly discuss matters in a full and frank manner. This effectively tests the strengths and weaknesses in the respective cases, as well as providing a holistic approach. Even if a full settlement is not reached with ADR, it may enable the parties to reduce the issues in dispute.
Alternative Dispute Resolution can also provide flexibility for the available to the parties to reach a settlement. This may result in a practical outcome, potentially benefiting both parties, rather than simply a “win/loss” situation. ADR may also assist in maintaining positive business relationships between parties.
Are there any drawbacks?
Alternative Dispute Resolution is often a suitable alternative to Court proceedings – but it does have its drawbacks. Utilising ADR may be considered the “exposing of your hand” or a strategy/ tactic that you later seek to use. Also, in some cases, the outcome is not enforceable, therefore we advise that any settlement terms are formalised into a written agreement and signed to render it enforceable.
Nevertheless, ADR is not suitable for all disputes- and alternative methods such injunctive relief may be required for some cases.
How does ADR work under the current Covid measures?
Our Dispute Resolution team in Cardiff have undertaken a number of mediations during the Covid pandemic, and particularly in the last few months.
These have resulted in settlements reached for our clients, enabling them to progress with their lives and avoid the cost associated with trial.
The mediations were undertaken virtually, via Zoom. The virtual experience replicates the standard, face-to-face proceedings; and each party can have its own private breakout room for discussions of offers. The mediator is in full control of the various rooms and the parties do not have to see each other if they do not seek to.
A virtual mediation has the benefits of saving the costs of renting meeting rooms as well as travelling to a venue. Further, the ability for a client to be at home provides them with a sense of ease and comfort during the pandemic.
Ince is here to support you during these challenging times. For more information about Alternative Dispute Resolution, please contact a member of our Dispute Resolution team:
Janice Powell, Partner & Head of Dispute Resolution at [email protected]
Emma Hughes-McEwan, Managing Associate at [email protected]
Charlotte Dawes, Senior Associate at [email protected]
The information above is not and should not be taken to be legal advice. You should not take action or omit to take action based on this information.
If you require any help on the issues raised above, please get in touch using the details above.