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ADR – when should it be used?


Cecil McCarthy

ADR – when should it be used?

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In my first article on Alternative Dispute Resolution (ADR) I mentioned its perceived advantages.
And often when one hears ADR advocates speak, the impression is given that there are no drawbacks to the process – simply send your case to a mediator and it will be resolved quickly!
The truth is that ADR procedures may not be suitable at all or may not be appropriate for the particular case.
Stuart Sime in his book A Practical Approach To Civil Procedure (tenth edition) identifies some of the disadvantages of ADR as follows:
(a) ADR procedures agreed before a dispute arose may be inappropriate for resolving the actual dispute that has arisen;
(b) where parties agree to ADR after a dispute has arisen, the parties may find it difficult to agree the details of the procedure to be followed (such as the identity of the arbitrator or mediator, payment of fees, rules to govern the ADR);
(c) in ADR procedures where parties have to pay fees to the arbitrator or mediator, the fees may make the process more expensive than litigation;
(d) ADR can on occasion be an expensive, time-consuming diversion, particularly if one of the parties is not genuine about their participation in the procedure;
(e) a party with a strong case on the law and evidence may have to abandon their actual rights if the ADR procedure is to achieve anything;
(f) litigation may become inevitable if an arbitrator makes an error of law or jurisdiction, thereby substantially increasing the costs and delay;
(g) ADR procedures sometimes become unworkable if there are multiple parties; and
(h) enforcement of the amount determined (by agreement of by the tribunal) is easier in litigation, particularly when compared to non-arbitration ADR procedures.”
How do you decide whether ADR is appropriate? Mr Sime discusses this question on the following extract taken from Page 63 of the book referred to above.
“Where the balance lies in any individual case depends on the circumstances. If a party needs a remedy that only a court can provide, there is no real option.
If both sides to a dispute realize that each has strengths and weaknesses, mediation or conciliation can save them both from becoming embroiled in protracted litigation.
Parties faced with a two-week trial may well find a day spent in mediation will save them a great deal of time and costs.
Parties with a sensitive business dispute may prefer to arbitrate in order to ensure there is no public trial.  Sometimes a party with a very strong case (but not sufficiently strong to seek summary judgment) will achieve a great deal by using ADR.
For example, the services of a mediator may make it plain to the other side that there are substantial problems with their case, and they should be more realistic about settling the claim.
The choice between using ADR or going to court may also turn on what the client is seeking to achieve. It may be that one mode of dispute resolution is better at delivering the required result than the other.”
Of course there are other considerations that may be important.
For example, a party may require an injunction to prevent a nuisance from being continued (such as the emission of foul odours).
Similarly, an injunction may be required to prevent conduct that must be curtailed quickly even though the substantive rights of the parties may take a while to resolve.
The fact that a limitation period may soon be expiring may dictate that court be the preferred option.
An assessment of the practicality of employing one of the range of ADR options needs to be made by the lawyers or by the court, if applicable, as soon as possible. In many cases, it may be concluded that ADR is not the appropriate method of resolving the particular dispute.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]

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