All These ‘ations – What’s the difference?

If you find yourself involved in a dispute there are now various ways to try and find a resolution.  The purpose of this note is to give some guidance on the key differences between the various alternatives.

Litigation

This is the traditional way of resolving a dispute and involves court proceedings – with a judge considering all of the evidence at a trial, applying the law and then handing down a final judgment.  If you like your dispute resolution public with ‘all the trimmings’ this is the one for you.   As well as the High Court and County Court, there are also numerous specialist tribunals.  If you need to establish a precedent for use in other situations, or if other forms of dispute resolution fail, then this is the inevitable choice apart of course from capitulation.  The trial will usually be in open court so a desire to have, or to avoid, publicity may also influence your decision.

Arbitration

To some extent this can be regarded as privatised litigation.  Essentially, an arbitrator, either chosen by the parties involved or appointed by an independent body, determines the dispute on paper or at a hearing – acting as an impartial decision maker.  In contrast to a judge, who may or may not have specialist knowledge of the specific area of law, with an arbitration the parties will generally look to appoint someone who is an expert in their field.  The resulting decision is usually confidential and generally binding.

Mediation

This is a flexible, voluntary and confidential process which usually takes place instead of, or sometimes alongside, conventional litigation. A neutral third party known as a mediator (again usually chosen by the parties for their expertise in the particular area of law) assists the parties to resolve their dispute – by facilitating settlement discussions.  The mediator is not there to hear evidence, find facts, apply the law or make a decision as a judge or an arbitrator would do.  Instead, they are there to guide the parties towards a negotiated settlement.  If the mediation results in a settlement, then that is usually recorded in a written agreement which can then be enforced through the courts, as with any other contract, if the agreed terms are not implemented.

Other ‘ations

In the field of construction disputes, there is also adjudication – a quick and efficient process introduced by the Construction Act 1996.  It is a sort of “speed arbitration” with the adjudicator making a decision, usually on the basis that the process is only supposed to last 28 days.

A new(ish) kid on the block is “early neutral evaluation” where a judge, a retired judge or a senior barrister hears both parties’ submissions and then gives their view as to the likely outcome at trial.  This is entirely without prejudice and has no binding effect.

All of these are of course alternatives to good old-fashioned negotiation – in correspondence, in telephone calls or at joint settlement or “round table” meetings.  With the advent of Teams and Zoom and online dispute resolution the market for round tables is on its last legs!

At IBB we understand that disputes can both be distracting and time consuming and our focus is to see if they can be resolved as quickly and efficiently as possible.  Whilst we will always take cases to trial when necessary, we will also promote other ways of settling disputes “out of court” including by mediation – where that is both sensible and possible.  If you find the choice of dispute resolution methods completely mind blowing then there is, if all else fails, meditation.

Get tailored advice for dealing with contentious probate

The information given here is intended for general information purposes only and should not be taken as legal advice.

For specific guidance relevant to your situation, please contact our contentious probate specialist Paul Grimwood by calling 01895 207859 or emailing paul.grimwood@ibblaw.co.uk.