ADR stands for Alternative Dispute Resolution – a way of resolving disputes which is an alternative to a trial before a judge. ADR comes in a number of different forms, but the most significant for many purposes is mediation. The government strongly encourages the parties to a dispute to resolve it themselves, by mediation, and a party who refuses to try mediation may find that even if he is successful before a judge he is not awarded his costs.
A mediation is conducted by mediator. It takes place in private, usually on “neutral territory”, such as a set of rooms in an hotel or conference centre. The proceedings are informal and confidential, and “without prejudice” – nothing said in the mediation can be used in legal proceedings unless the mediation reaches a successful conclusion; in which case the mediator draws up a legally binding agreement to resolve the legal dispute, which all parties then sign. The mediator has no legal powers, and is not there to decide which party is “right”. His or her task is to act as a go-between in the negotiations, speaking to one side then the other and sometimes both together, helping the parties to understand each other’s point of view, exploring ways of settling the dispute and ultimately bringing the parties together.
Given that many disputes become acrimonious and entrenched, mediation is remarkably successful – it works in the majority of cases. There are several reasons for this, perhaps the main one being that unlike litigation it is non-confrontational. A mediator can also help by pointing out the risks of going to court. It’s easy for one party to feel very strongly that they have a legal right which the Court must therefore uphold. Real life is not so simple. Many remedies – injunctions in particular – are discretionary. It is perfectly possible for the outcome of legal proceedings to satisfy none of the parties to the dispute, while costing them all a lot of money. There is much to be said for a settlement which delivers much of what is wanted, which avoids the risks of going to court, and which is much cheaper. Confidentiality may be important too, and it’s also the case that mediation can offer a wider range of remedies. Sometimes an apology is all that is needed.
Andrew Barsby is a non-practising barrister and an Accredited Mediator. He is very willing to receive requests to mediate property-related disputes, such as disputes over rights of way or other easements, boundaries, etc. But please remember that mediation is a strictly voluntary procedure, so the starting point must be agreement in principle from all parties to the dispute to mediate, preferably in the form of a joint letter from their respective solicitors.