Hey, let’s just talk it through...
ADR, or alternative dispute resolution, provides a voluntary alternative to the accepted practice of using the courts to settle civil disputes. The principle forms of ADR are adjudication, arbitration, conciliation and mediation.
The best known and most commonly used forms of ADR in the UK are arbitration and mediation but adjudication is rapidly becoming established as a valued method of settling disputes quickly, fairly and cheaply.
Why is it important? What does it involve?
It has become popular in some quarters, in particular amongst lawyers and mediation service providers, to regard conciliation, negotiation and mediation alone as ADR.
For these people, a negotiated settlement is an alternative to having a dispute brought to an end by a third party such as an adjudicator, an arbitrator or a judge.
This narrow definition ignores the significance of the voluntary aspect of private dispute settlement and the role that is played in all forms of ADR processed by experts and professionals outside the legal profession.
Civil disputes are disputes between private individuals and or organisations in regarding differences surrounding the parties' respective legal rights and interests. Some legal rights are inherent, such as personal safety, ownership of property, personal integrity and reputation, while other rights arise out of agreements.
The difference or dispute is likely to centre on a failure by one person to perform legal duties owed to another which harm the legal interests of that other person.
The principal categories of civil dispute involve claims founded in the law of contract, the law of tort which is concerned in particular with accidents and professional negligence, breaches of trust and the redistribution of shared property following the breakup of relationships.
Insurance, construction and maritime industries and employers are the most common users of ADR processes.
ADR is not available for criminal cases which are dealt with by and on behalf of the State before the Criminal Courts. Public Law disputes between individuals and the State, for example a complaint that an application for planning permission has not been dealt with properly by a planning and development licensing authority, are normally handled by specialist decision making bodies such as administrative tribunals which, whilst distinct from the courts, remain part of the State judicial machinery.
Often the decision making body may be called an adjudicator or an arbitrator but, since the decision making process is not voluntary, the process is not part of ADR.
However, where the organs of state engage in the same type of activities as ordinary people and organisations, such as driving vehicles and business agreements, resultant disputes are civil and can be disposed of by either the civil courts or ADR.
You will be working for a variety of different clients; from individuals involved in family break-ups, to large multinational companies. You will need to be a keen listener with a good ability to understand the needs of your clients and the desires of the other parties.
This will allow you to come to a fair agreement, which achieves the vast majority of the aims of your client.
Break it down for me a little bit!
If you are a keen negotiator, empathetic and have the ability to think quickly on your feet, then alternative dispute resolution is something that may well be right for you. You don’t have to be a lawyer to get involved (although many are) and the rewards can be great.
Gareth Kagan, Partner, Board Member and Business Group Head for Dispute Resolution at Bond Dickinson.
I look after our Dispute Resolution Group of 255 legal specialists including 42 partners. We are one of the largest Dispute Resolution teams in the industry and pride ourselves on the very best client experience.
What’s the first thing you do when you get into the office?
Bond Dickinson LLP has seven offices across the country so one of the great things about being Business Group Head is the opportunity to visit our different locations. I enjoy walking the floors and I am always excited by the breadth and depth of quality work.
How do you handle and organise / prioritise your workload?
It is very easy to be tempted to deal with the urgent but relatively unimportant matters that flash up on your emails. However, as a Business Group Head, it is important to have time to step back and take a strategic overview of where we want our Dispute Resolution practice to be in the future. Dispute Resolution, like many areas of law, is a rapidly changing market and it is a totally different environment than it was five years ago. It will be a totally different environment again in the next five years. One of my priorities is to make sure that we are at the forefront of innovation whether that is in IT, funding initiatives, how we deliver "more for less", or alternative ways of resolving disputes.
What sort of daily responsibilities does a partner have in ADR law? How does it differ from an associate role?
Recently one of the industry magazines launched a table of how many Court cases firms win for clients. When Court is unavoidable a client will always want its lawyers to fight "tooth and nail" to get the best result. However, the real success of whether we are doing a good job for the client is keeping them out of Court. A partner's role is focused on strategic oversight of a case and being at the front of the client experience. Associates tend to be more involved in the day to day running of cases, although strategy is a crucial part of that. Our lawyers always have the end in mind rather than just putting clients through a conveyor belt litigation process. ADR is at the forefront of our lawyers' minds when running any case.
A partner's role is to ensure that clients have the right team for the right job. A partner will monitor clarity of advice, the value it adds and help spot trends so clients can avoid disputes happening in the first place. We fully appreciate that disputes are disruptive for our clients and so we always start by reviewing the risks as well as setting out clear strategies for their management. Resolving potential disputes before they arise is best but we do not shy away either when a tough approach is needed.
Can you give us an idea of the sort of projects you manage from day to day? Which aspect of ADR law is dealt with most frequently by Bond Dickinson LLP?
Our lawyers are becoming more and more like project managers. We have strength and depth and an ability to draw down on significant resources at short notice. Project management is a vital skill, so too is negotiation and commercial "nous". No client will thank us for getting them embroiled in the publicity of a time draining Court case. It is our job to avoid that process so they can focus on their core business. Having said that, there will be times when Court is unavoidable and sometimes planned. At that stage, the client relies on us to make sure we get the very best result for them.
What sort of clients do you generally deal with on a day-to-day basis?
Our clients range from FTSE organisations through to some of the best known brands on the High Street. We organise ourselves around specialist sectors: Retail and Consumer, Energy and Natural Resources, Real Estate, Financial Institutions, Transport and Infrastructure, Commercial Property and Insurance. This means that we can bring informed industry understanding to all that we do. We find this is invaluable in being able to know what areas we can negotiate, which areas are market sensitive and which are "no go" areas. This insight helps to keep our clients out of Court but makes sure we give our clients the best chance of winning if Court cannot be avoided.