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Litigation vs Alternative Dispute Resolution
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Choosing the best option for you

The course of your usual activities may find you involved in a conflict that cannot be resolved directly. The traditional route to resolution is to fight your case in court but it’s not your only option and you may even find an alternative that works best for you.

Litigation is a way of resolving disputes via the court process. It can be lengthy, publicly recorded, and can be appealed. Alternative Dispute Resolution (ADR) is a less formal method, costs less, resolves quicker, has no appeal process and may result in a fairer decision.

Litigation is the traditional and most commonly understood method of dispute resolution. It involves one party taking legal action against another. With litigation, a judge will hear your case and provide a legally binding ruling. This process involves the civil court system and is largely out of your control. Because of the costs, resources required and intrusive nature of the court process, it is often considered a last resort. In fact, courts encourage parties to resolve disputes before reaching the justice system and may even stay proceedings or penalise those who don’t.

Instead, depending on the situation, mediation, arbitration or a combination of both may be used to reach a satisfactory outcome within a much shorter time and with fewer resources.

Mediation involves an independent mediator who helps the disputing parties communicate and negotiate to reach a mutually acceptable solution. The mediator does not decide the outcome but facilitates dialogue and guides the parties towards a resolution. This process is voluntary and confidential, allowing the parties to control the outcome, making it ideal for preserving relationships. Mediation is suitable when parties are willing to negotiate, wish to have a say in the resolution, avoid court costs, and keep the dispute private.

Arbitration, on the other hand, involves an arbitrator who acts like a judge, reviewing evidence and making a decision that is often binding. This process is based on an agreement to submit the dispute to arbitration, and it aims to provide a final and enforceable resolution quickly and cost-effectively. Arbitration offers flexibility in terms of rules and procedures and allows for expertise in complex issues. It is appropriate when parties seek a definitive resolution, are willing to give up control over the outcome, and do not need to preserve the relationship while keeping the matter private.

Litigation vs ADR: a quick comparison

Area
Litigation
Alternative Dispute Resolution
Cost
High legal fees, court costs, potential long-term financial commitmentLower costs, starting from £1500 split between parties, more affordable overall
Time
Often takes over a year for resolution, slow legal processesRapid resolution, from weeks to months
Risk & reputation management
Public court processes risk negative publicityPrivate resolution preserves reputation and avoids public scrutiny
Flexibility
Very limited flexibility, decisions are final and bindingOffers flexible, tailored outcomes that align with both parties
Expertise
Generalist judges may not specialise in media lawAccess to arbitrators and mediators specialised in media law
Support
Litigation is reactionary, no ongoing supportOngoing advice and pre-emptive solutions
Relationships
Acrimonious process can damage relationships irreparably Collaborative process can preserve and even strengthen relationships

Court intervention

Before commencing proceedings, the court will expect the parties to have engaged in correct pre-action protocols. This includes exchanging sufficient information to:  

  • understand each other’s position; 
  • make decisions about how to proceed; 
  • try to settle the issues without proceedings; 
  • consider a form of Alternative Dispute Resolution (ADR) to assist with settlement; 
  • support the efficient management of those proceedings; and  
  • reduce the costs of resolving the dispute.

Courts are now more inclined to intervene in litigation processes by directing parties towards ADR. This approach is based on a growing body of case law that supports the judicial authority to order out-of-court (ADR) resolutions. 

As a matter of law, the court can lawfully stay existing proceedings or order the parties to engage in a non-court-based dispute resolution process.

~ Sir Geoffrey Vos, Master of the Rolls
Churchill v. Merthyr Tydfil County Borough Council

By proactively seeking resolution through ADR or incorporating ADR clauses in their strategy, organisations not only align with current legal trends but also reduce costs and enhance their dispute management practices.

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Arbitration

Arbitration involves the appointment of an independent third party who considers all facts before issuing a judgement, which is legally binding and enforceable through the courts.

As an alternative to litigation, arbitration provides a fair, impartial, cost-effective path to restitution where serious harm or loss has been proved.

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Mediation

Mediation involves the appointment of an independent third party who facilitates dialogue between parties, which allows them to reach a private settlement via mutual agreement.

As an alternative to litigation, mediation serves to preserve the relationship between parties, while providing a rapid, cost-effective route to a fair settlement.

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RiskResolvr+

For organisations at risk for damage to their brand, bottom line or commercial relationships from disputes, ResolvR Cover+ offers different types of packages that de-risk litigation, ensure both supplier and customer retention, compliance with information legislation, and predictable outcomes with predictably low costs.

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