Alternative Dispute Resolution – Professional Negligence Claims
The courts aim to settle professional negligence cases as early as possible. To achieve this parties are encouraged to explore alternatives to the often long and costly court proceedings which culminate in a trial. These alternatives are known as Alternative Dispute Resolution (‘ADR’).
ADR can take place at any time: Before a claim is made, after each party has put its case forward, after evidence has been exchanged – or even the day before a trial. ADR is becoming increasingly commonplace and is a viable way of successfully settling disputes
The main types of ADR include:
Parties or their solicitors can negotiate a resolution to a dispute at any time via telephone, email, letter, or at a meeting.
Mediation is form of negotiation facilitated by a mediator. The mediator will engage with and listen to both sides, shuttle between them and endeavour to help them reach a settlement. The process is not binding on either party until a formal settlement agreement is signed. Either party may walk away from the mediation at any point.
The parties voluntarily agree to have the issue decided by an expert in the field in which the dispute arises. Quick and relatively inexpensive, the parties can agree on which expert is to be used. However, they will be bound by the decision (which is difficult to challenge).
A tribunal or a sole arbitrator will issue a ruling, known as an award, on the issues before it. Advantages include procedural flexibility and a degree of privacy as, unlike court proceedings, arbitrations are not open to the public. Disadvantages include the fact that they can be more expensive, they are not bound by legal precedent, and enforcement still requires court involvement.
An adjudicator will make a decision on a matter based on the information provided by each party. Their decision is binding unless overturned by a court. Adjudication is generally only used in building and construction disputes.