Alternative Dispute Resolution

Yes, once properly recorded. A settlement reached in negotiation or mediation takes effect as a contract when signed, and where proceedings are on foot it can be embodied in a Tomlin order, allowing enforcement without a fresh claim. An arbitration award is binding when made and may be enforced through the courts in the same manner as a judgment (under section 66 of the Arbitration Act 1996).

The principal forms of alternative dispute resolution are negotiation, mediation, arbitration and adjudication, alongside early neutral evaluation. They differ in who controls the outcome. In negotiation and mediation the parties decide; in arbitration and adjudication a third party decides. The appropriate method depends on the relationship between the parties, the terms of any contract, and how quickly a binding answer is needed.

Communications made in a genuine attempt to settle a dispute are protected from disclosure to the court. This allows both parties to make concessions and offers freely, knowing they cannot later be relied upon as admissions if the matter proceeds to trial. The protection has limits, and marking a document without prejudice does not of itself attract it. We advise on how to conduct settlement communications so the protection is preserved.

ADR is not mandatory in most commercial disputes, but the courts actively encourage it and the Court of Appeal has confirmed that a court may order the parties to engage in it. A party that unreasonably refuses ADR may be penalised in costs even if it ultimately wins. In practical terms, a reasoned engagement with ADR is now part of conducting litigation properly.

Their refusal is recorded in open correspondence and becomes relevant to costs. A party that declines a reasonable invitation to mediate without proper justification exposes itself to costs sanctions at trial. We put the invitation in terms that make the risk of refusal plain, and where refusal persists we issue proceedings from the strongest available position.

Yes. Mediations and settlement meetings can be conducted entirely by video, with the mediator moving between virtual rooms exactly as they would between physical ones. Online dispute resolution removes travel cost and often allows an earlier date. The legal effect of any settlement reached is identical.

A negotiated settlement can be concluded within days where both parties are motivated. Mediations are commonly arranged within a matter of weeks and the majority conclude in a single day. Arbitration timescales depend on the procedure adopted but remain substantially shorter than court proceedings, which routinely exceed a year before trial.