Best to keep out of court

HOWARD CATHERALL, head of dispute resolution at Gotelee & Goldsmith, says resolving a commercial dispute can be quicker and cheaper if you avoid taking it to court.

TRADITIONALLY, commercial disputes are settled after a trial hearing but there are alternative methods of resolving your dispute.

Alternative Dispute Resolution, (ADR) avoids court altogether; indeed, the courts now expect all parties to a dispute at least to consider whether they can resolve matters through ADR.

Why should you consider ADR? If you take your dispute to court, even if you have a strong case, three things are assured to follow which could easily make your life miserable:

Wasted time: Even a relatively straightforward and low value dispute may take up to a year to reach a trial hearing and high value, complex cases could take several years. Your solicitor will guide you through the process and deal with the court and your opponent, but it will still consume time you could put to much better use.

Stress and anxiety: Your solicitor’s advice of a 70% chance of winning at trial, which felt so reassuring at the outset, will become a constantly worrisome 30% chance of defeat. You may also become frustrated by the whole unfamiliar process, however well things appear to be going, and wonder why it all takes so long.

Court costs: You will have to pay for the costs of your own legal representation, some of which the court won’t order your opponent to pay, even if you win. There are also costs you will have to pay to your opponent if you lose.

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These concerns can be minimised by resolving your dispute through ADR, before it goes to court. One advantage is that anything raised during ADR is “without prejudice”, meaning it cannot be referred to at any subsequent trial hearing.

For example your solicitor could send a letter to your opponent, setting out what you would be willing to settle for. This might trigger an exchange of correspondence leading to a settlement both parties can agree upon.

Alternatively, your solicitor could approach settlement negotiations over the telephone or try a round-table meeting, with all parties present with their lawyers.

Or, if you cannot bear the thought of seeing your opponent again, a trained mediator can be used, speaking with each party separately until a deal is reached.

Business people often prefer ADR as it fits in with normal business practice. Negotiating a settlement to produce the best available outcome, putting the dispute behind them and moving on to the next deal is a practice they are much more familiar with than “win or lose at all costs”.

For advice please contact Howard Catherall on 01473 298190 or email