By Mark James, Partner & Head of Dispute Resolution
Those who have been involved in litigation through the court system will know that it can sometimes be an unpleasant experience. No matter how good you may think your case is, there is in every case some risk to be considered if it goes to trial and, win or lose, it can be very costly.
If one said that, as a rule of thumb, there is an average recovery of around 70% of your costs when assessed by the court if you win the case, that means you will still have paid 30% to your lawyers to get there.
A cost benefit analysis is always a good idea but in order to do this properly, you really need to understand what other options are available to you to resolve your dispute before coming to a decision.
There are many forms of alternative dispute resolution (ADR). Perhaps the most common forms are round table meetings, where the parties get together, normally with their solicitors, and attempt to settle their dispute without incurring further costs through the court, or mediation, where an independent person (called the ‘mediator’) is appointed by the parties to assist them in resolving the dispute.
The attraction with mediation is that the parties decide the outcome as opposed to the uncertainty of a decision by a judge. All discussions should be confidential to the parties until a formal agreement is reached and recorded in writing, signed by or on behalf of the parties.
Don’t ignore a request to mediate
Do not ignore requests to mediate or participate in ADR – even if your response is ‘no’ – you should say so and explain why. A decision made late last year by the Court of Appeal confirms just how important it is for the parties to consider ADR and not to ignore requests to attempt to resolve disputes in this way.
