Points to consider about using ADR

This page gives you a quick overview of things to consider when deciding whether to use ADR.
 
If you are involved in a dispute and are trying to decide whether some kind of ADR might help you resolve it, have a look at Pros and Cons of ADR.
 
If you are planning to use mediation, or have already booked a mediation appointment, you may find Tips for mediation is a helpful checklist. You may also find it interesting to have a look at What is a good mediation?.
 
If you are an adviser in a CAB, a Law Centre, or another advice agency, then this section will help you advise your clients appropriately so that together you can make an informed decision about the next steps. In particular, you may like to refer to ADR and the courts - a guide to the various rules which you need to take into account when deciding whether to try ADR before going to court.
 
If you are a student or researcher, you may find it helpful to visit Court cases, a summary of the most important court cases in recent years, and ADR Research Summaries, an overview of key research into ADR in the UK.
 

Three important points to remember
 
1. ADR schemes are NOT alternatives to advice.

• You nearly always need good, informed legal advice before deciding how best to resolve your dispute. This is especially true if there are time limits for taking legal action, as there are in many employment disputes, and if you are using mediation to reach a legally binding settlement.
• You may need advice as you go along - in family mediation, in particular, it's well worth checking out proposals with a solicitor in between meetings to make sure that the outcomes you are discussing are safe and fair.
• You could also find it helpful to get some advice before deciding whether to accept a solution agreed through mediation or conciliation. In equalities mediation, for example, accepting a settlement at the mediation means that you can't take the same dispute to court or tribunal later.

2. When deciding whether or not to try ADR, think about your bargaining position.

• If you think you are the weaker party and you wouldn't be able to get a fair outcome, you may need to use the legal process to enforce your rights against a large organisation.
• If you are afraid of violence or intimidation, it may be safer to get a solicitor to try to negotiate on your behalf, or to take your case to court for a judge to decide.
• If the other side won't negotiate with you or agree to mediate, you may need to start legal action in order to get them to take your claim seriously.
• If you are concerned that the other side won't do what they promise, you may need to think about using the courts to enforce action.
• ADR may not be the best solution if you need to rely on a legal precedent from an earlier judgment. Your case may also be important in setting a precedent for the future, or in making the press and public aware of bad or illegal actions by large organisations.

3. Think about what kind of process would suit you best.

• If you'd prefer to tell your story face to face, and have a conversation about the problem with the other side, then mediation may be right for you.
• If you'd be more comfortable just sending in copies of letters and documents for someone independent to make a decision, then perhaps adjudication, arbitration, or an ombudsman scheme would suit you best.
• If you are unsure of yourself, and get nervous trying to hold your own in an argument, you may be happier to get a legal adviser or a solicitor to negotiate on your behalf.
• If you want to have a day in court, and for a judge to make a public pronouncement about who is right and who is wrong, then you may want to take legal action.

Details of how the different ADR processes work can be found in the Types of ADR section of this website.
 
You will also want to consider:

• Timing - how urgent is your problem, and how quickly can you get it dealt with using an ADR process? Are there time limits for going to court or tribunal?
• Cost - how much does the ADR process cost (if it is not free), and can you get your costs back? Remember that some types of ADR (such as mediation) might involve fees and other costs such as room hire and travel costs.

For more about costs of ADR, see Pros and Cons of ADR.
 
October 2011