At berg we promote a range of services to help clients settle their disputes, not just via the court system. Alternative Dispute Resolution (known as ADR) is often a cost effective and efficient way to tackle even the most acrimonious of business disputes.
Mediation is often an effective form of alternative dispute resolution, encouraged by the Courts.
With use of an independent third party mediator, a number of our most complex commercial disputes have been resolved by mediation.
Mediations take place on a without prejudice basis, this means that if terms cannot be met, any discussions at the mediation are entirely confidential and cannot be referred to in the Court which is useful in encouraging the parties to be open and objective in their mediation discussions.
Mediation is often used as a way to facilitate the narrowing of the issues between the parties. It helps the parties to explore flexible options for resolving the issues.
Mediation can often result in agreements that the Court could not impose, which may include further working relationships, apologies as well as financial contributions.
Mediation is usually cost effective in the long term as if matters are capable of resolution, they will often conclude either at or shortly after the mediation and avoid both parties costs in going to Court and avoid the risk of litigation.
Often where cases do not settle on the day of mediation, it will open the parties minds to the possibility of resolution. We have found that in a number of our complex disputes that within weeks of the mediation, the case was successfully resolved even when the parties previously were entrenched. It is an effective tool in opening up a dialogue between the parties to achieve the best outcome for all.
Given increased Court costs and the risk, time and costs of litigation, mediation is being used an effective way to try to resolve disputes without the time and cost of a full trial.
Mediation can be used at any time during the proceedings, however, in our experience it is most likely to occur once the parties have exchanged pre-action correspondence or after proceedings have been issued and pleadings have been exchanged but before parties have incurred the costs of disclosure, evidence and trial.
Arbitration is another form of alternative dispute resolution which involves appointing an Arbitrator to determine the dispute.
In the last 12 months there has been a significant increase in Court fees meaning that Arbitration has become more attractive and we expect to see arise in the number of arbitrations being used as an effective way to resolve commercial disputes.