What is Alternative Dispute Resolution (ADR)?
ADR or alternative dispute resolution can include arbitration, mediation and expert determination. Arbitration and expert determination are alternatives to civil litigation; mediation will sit as part of a wider attempt to resolve disputes.
Determining the Forum for Dispute Resolution
Usually, the forum in which a dispute is to be resolved will have been agreed between the parties as part of the governing contract. There may be an “arbitration clause” or “expert determination” clause. Where there is a tort (as opposed to breach of contract), the governing law will set out the forum for the dispute to be resolved; typically, this will be courts. In certain cases, parties might agree to vary this.
Negotiation and Mediation
Of course, the parties could also try to negotiate a resolution without recourse to formal proceedings, especially where there is an ongoing commercial relationship to consider. In many cases the parties are obliged to attempt to mediate.
Importance of Legal Advice
In all cases, it is important to take legal advice when considering or being faced with a dispute, including around the relevant forum for dispute resolution, how the process will work, and what needs to be done to protect your position.
