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You’ve got to have a particular kind of personality to want to work in dispute resolution and for this reason, not everyone is drawn to litigation. All types of dispute resolution are there to achieve one goal – to solve problems. But there are different ways to do this and understanding the merits of your client’s position will go a long way. Dispute resolutions can take place anywhere from early neutral evaluation to the courtroom. The types of dispute resolution are: 

• mediation;
• adjudication; 
• expert determination;
• litigation;
• early neutral evaluation; and 
• arbitration. 

In this blog post, I want to focus on the main types of dispute resolution; litigation, mediation and arbitration.

Want to learn about dispute resolution from a practising lawyer? Check out this Practice Area Profile.

Litigation

Litigation is often portrayed as a dramatic courtroom argument when the vast majority of cases are settled well before trial, or even before a claim has been filed. Litigated cases follow processes and procedures, such as the civil procedures rules, governed by the Civil Procedure Act 1997 (CPR) and Criminal Procedure Rules and Practical Directions 2020. Litigation is a public procedure that takes place in front of a judge and the court decides the outcome of the dispute.

It can be a very complex route, in which the clients will typically have little knowledge of litigation and the lawyer will be there to guide the clients through the process. Now we turn to types of dispute resolution, which are more commonly known as ‘alternative dispute resolution’ (ADR). Many parties turn to ADR to save time, flexibility, costs saving compared to going to court to take account of their needs. Of course, some judges are familiar with the issues being heard depending on their experience, but they’ll be bound to follow the law.

Arbitration

There are several stark differences between litigation and arbitration. Firstly, arbitration is handled outside of the courtroom, but a private court may be used for the dispute. Secondly, where a judge is present in litigation, in arbitration an appointed arbitrator is selected based on their expertise. Arbitrators can be professionals in the industry in which the parties dispute concerns such as design professionals in the construction industry. However, this really depends on the complexity of the dispute and typically the arbitrator will be a lawyer whose practice focuses on matters from a particular industry.

Finally, the arbitrator considers the legal position and the evidence. The legal position will usually be pre-agreed in a contract, including international contracts. The arbitrator’s decision is made based on their analysis of the case and will be legally binding on the parties. This means that their decision is final and only in limited circumstances can the parties appeal.

Mediation

Lastly, mediation is where the parties will negotiate with the hopes of coming to a resolution. It’ a confidential process, facilitated by an independent third party, a trained mediator, who will help the parties come to a mutually acceptable outcome. The purpose of mediation is to better understand each parties’ position to explore options for resolution. Each party will be represented and can meet privately with the mediator to discuss their position. If a settlement is reached, it’ll be recorded in writing and become legally binding. Unlike litigation and arbitration, the parties have control over the outcome. If no agreement is reached, they proceed to arbitration or litigation. According to the CEDR Mediation Audit in 2021, 93% of mediations in this period were successful.

Whatever type of lawyer you’re destined to be, chances are that at some point you’ll encounter dispute resolution. Whether that be through being part of a dispute resolution team engaging in litigation or in a transactional team where you’ll be advising on an ‘arbitration clause within a contract or drafting such clauses. Every transaction is different so every dispute should be considered in context. Being able to understand how each dispute resolution works will assist you in being able to understand whether you might enjoy dispute resolution in practice.