Dispute Avoidance

Litigation and other dispute-resolution mechanisms are, in general, costly to resolve, especially if parties are unable to control the process. The cost aspects are highlighted by the now well-known study – Lord Justice Jackson’s Civil Litigation Costs Review.

However, parties do have control well before they become entrenched in courts or tribunals, and mediation or conciliation is perceived as an alternative to contentious litigation and arbitration. However, mediation can also be costly if the ‘Go-Between’ is inexperienced or unable to cope with the dynamics of the interaction between the parties, and the mediation process can go out of hand, causing delays that invariably incur unnecessary costs.

Ideally, I said ‘ideally’ because it is not an obvious choice for parties facing an impending crisis to seek help to avoid the problems from escalating into a crisis, i.e., dispute avoidance. All disputes are a ‘crisis’ of some sort. Crisis may not be avoided; e.g., contracts are breached due to no fault of the parties but rather to events over which they have little control. However, disputes can be avoided if parties are prepared to seek innovative solutions that lie before and beyond litigation or alternative dispute resolution (ADR) (e.g., arbitration or mediation/conciliation). There are other variances of ADR that I have not addressed here and will not go into, as there are many resources available elsewhere on ADR. Also, these ADR approaches or mechanisms deal with dispute resolution, not dispute avoidance.

Avoid going into disputes by exploring options!

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Cher