HomeFWJ TakeawayResourcesAlternative dispute resolution in negligence claims

It is important at the outset of a claim against professional advisers to choose the best legal option available to bring a quick and commercial resolution to the claim. Our experts can help guide you through this and make the right choices for you.

For many professionals and defendant firms, the prospect of a public court case is not an attractive prospect as they will not want a long court case and the bad publicity which often flows from it.

Alternative dispute resolution is ordinarily considered at every stage of the claim proceeding.  Where the claim relates to professional negligence it is common for the parties to engage in alternative dispute resolution in some form early on in the proceedings.

There are various forms of alternative dispute resolution with some being more suitable for professional negligence than others.

Arbitration

Generally, arbitration is not a form of alternative dispute resolution is used in professional negligence claims.

Arbitration schemes are very effective in construction disputes so may be more appropriate perhaps in a professional negligence claim involving a construction contract but generally, mediation is used more frequently in professional negligence.

Mediation

Mediation can and often is one of the most effective methods of resolving cases which involve negligent professional advice.

  • the process involves the parties in the claim agreeing the selection of a mediator and agreeing the venue.
  • the mediation can either take place at a venue where parties attend in person but also, more since the COVID19 pandemic, it has become more common for mediations to be take place remotely and in our experience, this works very well in many cases. 

Online mediation works very well with the hosting of the mediation being conducted via video conferencing service providers which enables participants to interact with the mediator and each other securely.

Mediation in professional negligence claims are often successful either during the mediation itself or in follow up negotiations which continue afterwards.

Adjudication

Adjudication is another form of dispute resolution although it is more usually associated with construction disputes.  It is a process where an independent and impartial adjudicator is appointed who makes a decision.

Adjudication was not originally considered suitable for professional negligence claims for a number of reasons.

  • by their nature, professional negligence claims are usually fact and document heavy. 
  • they are also often legally complex so all of those ingredients together make it difficult for a non legally trained independent adjudicator to properly determine.

It is with that in mind that a scheme was launched to provide for adjudication in professional negligence claims.

Professional Negligence Bar Association Adjudication Scheme

The scheme (launched by the Professional Negligence Bar Association) enables early dispute resolution involving all types of professionals quickly and cost effectively.  An adjudicator is either nominated or appointed by the parties who enter into agreement to be bound by the provisions of the scheme and the extent to which the decision of the arbitrator will be binding.

The scheme has been supported by the incorporation into the Pre-Action Protocol for Professional Negligence that active consideration for participation in the scheme by the parties should be given.

  • one of the main positives about the scheme is that any adjudicator will necessarily be a barrister or lawyer who has significant experience in matters of professional negligence
  • this gives the participants the confidence that the adjudicator will not only understand their case but will have the experience and knowledge to adjudicate on it.

With that confidence, the scheme enables the parties to agree between themselves different aspects of the adjudication.  They can agree as to which aspects (if not all) of the case which the adjudicator is to be asked to decide on, the finality of that decision, whether it will be binding on the parties and can also decide how the costs might be dealt with by way of recovery by the parties.


If you have a claim against a professional adviser and want to know more about how best to resolve it – contact our friendly professional negligence team today. We have won many claims for our clients, including claims against solicitors, accountants, tax advisers and surveyors. Whatever the nature of your claim – we can help.

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