Welcome back to those following this series of posts on how to maximise the use of ADR pre-litigation.
The most powerful potential of ADR as a mindset and set of strategies lies in its pre-litigation use.
This is a potential that is yet to be fully realised in most countries where ADR is now a well-accepted “tool” within the legal justice system. This is because, as I have stated earlier, most of the focus has been on utilising ADR after the dispute has manoeuvred into court rather than before the dispute has been converted into “litigation”.
As soon as a dispute become “litigation” it becomes hijacked by the legal mindset and litigation model for resolving disputes via case management and adjudication. This model tends to polarise the parties and limit their thinking and perspectives on the dispute and how to resolve it to legal concepts that tend to focus on who has the stronger or weaker case based on legal principles and measuring sticks (legal issues, evidence and onus of proof etc.)
If, on the other hand, the parties and their representatives were clued up on how to use ADR right from the start (i.e. when a dispute first crystallizes) they might respond is this sequence before even contemplating litigation –
1. Exchange their own Position papers regarding the dispute within an agreed timeframe and do this in an entirely non-confrontational and friendly way;
2. Respond as objectively and non-aggressively as possible to each other’s position statement within the agreed timetable; and with permission to express themselves frankly and without hiding emotions and feelings ignited by the dispute provided that an attempt is made to explain those emotions and feelings to help the other party understand them;
3. Each party then draws up a set of possible options for settlement and this is exchanged within the agreed timetable;
4. If this does not lead to resolution by an agreed date, the next step is to engage a expert in ADR (a qualified ADR practitioner). This ADR facilitator will most likely be an accredited mediator but need not be a lawyer unless the parties feel that some relevant legal expertise is necessary;
5. The ADR specialist then draws up a blueprint to manage the dispute and sends that off to the parties for comment and eventual approval;
6. A dispute resolution retainer agreement is then drawn up and submitted to the parties for approval;
7. Once the retainer is signed the ADR specialist commences the protocol that the parties have agreed to and facilitates settlement of the dispute.
You may have some questions to ask, such as –
a. How long does this take?
b. What does the “ADR protocol” for tackling the dispute include? What is in the ADR toolbox that makes a successful outcome a high probability?
c. What does it all cost?
d. What if it doesn’t work?
e. Can time and money be wasted, and if so, why isn’t it better to just file in court first and then tall about ADR?
Good questions and I will tackle each one of them in my next post.
Cheers,
Christopher Whitelaw
Commercial Disputes Resolver
02 94208213
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