What are the alternatives to litigation?
Most people do not want to argue.
Although the news broadcasters would seek to persuade us otherwise, in everyday life having a dispute is a waste of time, consumes resources that could be better expended elsewhere and also leads to the risk of unexpected losses or often larger losses than were initially anticipated.
A common reason for extended and costly legal proceedings is often the personal emotional grievance between the parties, and this is where employing properly qualified impartial legal advisors is most valuable.
A good quality solicitor will not have a personal interest in your claim or your defence (except perhaps his/her fees, although professional rules prevent this from affecting any advice given) and should clearly direct you to the recommended course of action and the legal risk to consider when or when not to accept settlement proposals.
This objective approach of a solicitor is invaluable as it will often provide a solution where otherwise both sides may refuse to “see the wood for the trees”.
Alternative Dispute Resolution (“ADR”)
In recent years there has been an increased effort to encourage parties to engage in ADR, which is a very effective mechanism for settling disputes.
ADR comprises methods where parties seek to attempt to resolve matters out of Court by way of arbitration or mediation or general Without Prejudice discussions. The most common process is mediation, where an independently appointed experienced lawyer (for instance a solicitor or barrister) will commonly supervise initial meetings and ongoing discussions as to different aspects of the case between the parties over a day long (or more) meeting.
In our experience these carry a high likelihood of success and we have extensive experience of dealing with mediation.
However, and most importantly, mediation (as with other forms of ADR) is only relevant where the parties are willing to engage in the process. This is unlikely to be something the parties are willing to agree at an early stage, particularly before seeking legal or other professional advice, and will usually follow a flurry of correspondence, meetings or even threats before the parties are willing to come to the table to work at achieving a solution that both parties will feel content with.
By this point some legal costs may have already been incurred by each party and there may be some degree of weariness as a result, which is the point at which your options need to be seriously considered.
When faced with a claim, the options available depend on the nature of the claim, the status and wealth of the parties and the balance of power between them. ADR can have a very limited effectiveness where there is an unwillingness to engage or one party is in a materially weaker bargaining position.
In summary, the options immediately available include:
- Negotiation – usually in correspondence with a view to rebutting any claim or ultimately aiming at a settlement.
- ADR – usually comprising mediation.
- Arbitration (for construction cases).
- Dealing with small claims electronically.
- Issuing substantive proceedings for larger claims.
- Emergency enforcement action – including statutory demands, winding-up petitions, search and seizure orders and freezing injunctions.
The option chosen from the above will depend upon the nature of the dispute, the interest and urgency of the parties and the stage or progress of negotiations to date.
At Francis Wilks & Jones we dispose of a majority of matters via negotiated solutions but if this is not possible, we can assist with escalating matters to ADR or litigating disputes if required. In the event you wish to consider any of these options but are unsure of what funding arrangements would best suit you, then please visit the funding arrangements page of our website.
Please call any member of our commercial litigation team for your consultation now on 020 7841 0390. Alternatively e mail us with your enquiry and we will call you back at a time convenient to you.