Dispute resolution - alternatives to going to court

20 January 2012

If you are involved in a dispute with someone – whether it is an employer, company providing you with services or a dispute with a neighbour, going to court can be a daunting prospect for the uninitiated. It can also be costly and time consuming, depending on the kind of problem you are faced with. But there is now another way to handle these situations. Alternative Dispute Resolution (ADR) and Mediation are becoming a favourable option for clients and practitioners, and legislation has even been passed by the Scottish Government to facilitate the use of ADR in Scotland, by way of the Arbitration (Scotland) Act 2010.
In some cases, arbitration can be free, or a much lower cost that the expense of going to court. Depending on the situation, one party, if they are a large organisation or company, may meet the costs, although as a general rule, each side will pay their own costs unlike in court where the loser picks up the bill. If a court has referred parties to arbitration, then legal aid may available if the party is in receipt of it.
One of the key benefits of arbitration is choice; both sides can decide how they would like to proceed depending on the issue in question. With arbitration, an independent arbitrator will listen to both sides and then decide on the best course of action to take. Parties have a choice of who acts as arbitrator, and how many there will be. The arbitrator’s decision is final, and the whole process, and its outcome, can remain private, unlike court proceedings and rulings which are usually public and publicly accessible. A court cannot undermine the outcome of arbitration unless there are substantial procedural errors.
For commercial disputes, arbitration can be an alternative to costly litigation, and a purpose-built centre has opened in Edinburgh in order to promote Scotland as a centre for arbitration both nationally an internationally.
Mediation is another option. Again, parties have a choice in who can assist them, whether this is an expert in the area in dispute, or a solicitor. Where family issues are involved, mediation is available through Relationships Scotland. It is always beneficial for both parties to see court as a last resort and mediation can help remove some of the stress involved in family disputes. Mediation can also be a productive way forward when it comes to problems in the workplace, or even property disputes, from garden fences to agricultural boundaries. It is important that both sides are open to mediation. Mediation differs slightly from arbitration in that it does not preclude the parties reverting to court action in the event that they have been unable to reach a workable solution, although if this is the case, the same solicitors are then unable to act for them in court. For certain property disputes that involve a known legal issue, mediation may not be suitable.
In all cases, consulting with a solicitor is still important to ensure you are fully prepared for the case, aware of the procedures that will need to be followed and help you obtain a satisfactory outcome. Contact us to assist you in deciding the best way forward.

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