Alternative resolution to litigation

The English Civil Procedure Rules actively encourage alternative dispute resolution. The courts themselves have imposed costs penalties on parties that have declined ADR without good reason. Some courts have also introduced compulsory ADR schemes. Yet, this does not mean that a broker can be forced to use ADR.

In Halsey versus Milton Keynes General NHS Trust (2004), the Court of Appeal held that a losing party had to show why the party that won their dispute, but previously rejected ADR, should be deprived of its litigation costs. The loser had to demonstrate that the winner had acted unreasonably in rejecting ADR. The court, when considering this question, had to remember the benefits of ADR over litigation and consider all the circumstances of the particular case. If you decline ADR and win your claim, you should be able to keep your costs, provided your rejection of ADR was not 'unreasonable'.

ADR is usually quicker and cheaper than litigation. It is consensual - the outcome is up to you, not a judge. It also avoids the unpleasantness of litigation, which gives you the chance of salvaging your business relationship with the other party. It is, however, of little use if you need an injunction, a public affirmation of your stance in the dispute or if you need a legal precedent. For those outcomes, you must go to court.