FREE BOOK CHAPTER: What is ADR? (From ‘A Practical Guide to Alternative Dispute Resolution in Personal Injury Claims: Getting the Most Out of ADR Post-Jackson’ by Peter Causton, Nichola Evans, James Arrowsmith)
15/12/16. ADR means Alternative Dispute Resolution. This is a term with a very wide definition and covers any form of dispute resolution, other than through Court process. Strictly speaking the term "alternative" may be something of a misnomer. Most forms of ADR are used hand in glove with either litigation or arbitration.ADR comes in a range of forms, as summarized below. Most of these forms of ADR are discussed in further detail later on in the book.
Early neutral evaluation
"Early neutral evaluation" can be organised at any stage in proceedings. The procedure involves a Judge, an arbitrator or an independent third party (for example a solicitor, or a barrister) sitting with the parties and, on the basis of written evidence put before them (for example documents and witness statements) and on the basis of what they hear from the parties, giving a non-binding view as to the likely outcome of a legal dispute. If the parties have used a Judge in litigation for early neutral evaluation, then if the case does not settle that Judge will not try the case. They will have no further involvement in the procedural aspects of the case.
The courts can also order ENE pursuant to their powers under CPR3. This has not been much used in personal injury claims, though some court centres do use it. However, Briggs LJ is a proponent of ENE and if his Review is implemented, it will feature in the new Online Solutions Court system.
Arbitration falls within the broad umbrella of ADR, but arbitration also has much in common with litigation. Comparing litigation and arbitration the similarities are obvious: there are two (and perhaps more) adversaries, there is generally a formal process for the exchange of pleadings, disclosure of documents, service of witness reports and expert reports, albeit that it is a process that the parties control and dictate the terms. If necessary, parties can be compelled to comply with deadlines.
In each case the process culminates with one or more hearings. At the conclusion of the hearing or hearings there will be some form of determination on the issues which remain live between the parties. Generally there will be a winner and a loser. A number of consequences will flow from that determination, notably in terms of who bears the costs or a large part of the costs of the whole process. Arbitration is currently being promoted as a way of resolving personal injury claims without going to Court, but the costs of the arbitration being suggested are still relatively high compared to other methods of ADR. This is due to the involvement of an arbitrator throughout the process and that they tend to be relatively senior. Given the increases in Court fees and with the expectation that they will increase further, the balance is shifting, however, and some personal injury lawyers are increasingly turning to arbitration as a way of dealing with matters in a more cost effective manner.
Joint Settlement Meetings
A JSM is essentially a forum within which negotiation will take place. On the run up to a JSM, parties will have exchanged evidence and details of their case. At the JSM itself the parties and their representatives will have the opportunity to set out their case to one another (typically through their representatives) and exchange offers. There is no facilitator or decision maker in a JSM and so if the parties cannot compromise with one another, there will be no resolution to the dispute.
Mediation may be facilitative or evaluative.
Facilitative mediation has some similarities with a JSM, but with the addition of a mediator who will assist the parties in exploring their own cases, identifying their objectives and moving towards a settlement, by acting as a neutral, independent, trusted diplomat assisting the parties to resolve their differences.
Evaluative mediation has features in common with early neutral evaluation. While the mediator will remain a neutral party, they will be prepared to express views on the issues and arguments which arise at the mediation, generally with all parties present. They may go so far as to express a view on an appropriate settlement. Having contributed their views to the process, in order to encourage the parties to scrutinize their case and their opponents, the mediator will then endeavor to broker a deal.
Pre Action protocols
These are processes in which parties are expected to engage prior to litigation, which create opportunities for settlement, typically through exchange of offers (although they require parties to consider other forms of ADR and there is no reason why other ADR should not take place).
In this book we will consider the protocols for low value injury relating to motor, employers Liability and public liability claims. These are supplemented by a “Stage 3” process to bring a dispute on quantum of a claim before a judge for a decision with a minimum of cost.
Other pre action protocols are in place for personal injury claims not falling within the low value process and for clinical negligence claims.
Though not commonly thought of as ADR, Part 36 is a key feature in any practitioner’s dispute resolution armory, and is designed to encourage settlement through a system of incentives and penalties with a view to cutting through cases and resolving matters at an early stage.
There are various forms of ADR including
Early neutral evaluation
Joint Settlement Meetings
We have also included the Pre-Action Protocols and the Part 36 offer processes in this book because they are an important part of trying to resolve cases at an early stage used by personal injury practitioners.