The continuing momentum driving all forms of alternative dispute resolution (ADR) is a positive force that shows no sign of abating.
Negotiation, mediation, early neutral evaluation and expert determination are all forms of ADR, the utilisation of which continues to increase hand in glove with incentives for use and penalties for avoidance.
There can be no doubt that the use of ADR to resolve disputes considerably reduces the time and resources required to achieve settlements, thereby significantly reducing costs and disruption to business.
In order for ADR to be effective, it is extremely important that it is approached in good faith and with a genuine desire for resolution. The difficulty in forcing parties to engage in ADR (increasingly the approach being taken by the UK legal system) is that the required spirit of compromise and shared intent can be lost.
The CPR Pre-Action Protocol for Construction and Engineering Disputes contains an express recommendation that parties should meet to agree the main issues in the case, identify the root cause of disagreement in respect of each issue, and consider whether, and if so, how, the issues might be resolved without recourse to litigation.
The CPR Protocol for Pre-Action Conduct requires parties to consider whether some form of ADR might enable them to settle their dispute without starting proceedings and enables the court to apply costs sanctions for failures to comply.
In light of the above, all parties are advised to ignore ADR at their peril.
For any enquiries or more information, please send an email to Mike.Smyth@orj.co.uk or call 01785 223440.
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