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Alternative dispute resolution (ADR) is the name given to a variety of ways of resolving disputes without going to court.

When is ADR the best option?

You can use an ADR scheme to deal with almost any dispute or disagreement. But usually both of the disputing parties need to agree to use ADR. In certain circumstances, your tenancy or lease may say that you have to use ADR – if this is the case then you must use ADR before taking any further action.

You can use ADR at any time, even when there is a court case already going on. You should always give careful thought to using ADR before starting a court case. ADR is almost always quicker, less stressful, and less expensive than taking a case to court, and can often help you get a better outcome. It is sometimes a legal requirement.

However, ADR is not always appropriate or the best course of action. This includes when you first notice something that needs dealing with (eg disrepair, noise or antisocial behaviour).When you first notice the problem, you should report it as soon as possible, but there will be no dispute requiring ADR just yet.

ADR is also inappropriate in situations involving:

• serious injury or a large claim for money – you should get advice from a solicitor about bringing a claim for compensation. The solicitor may then advise ADR, but only when your claim has been properly assessed and calculated
• serious crime, for example, a theft or violent assault
• trivial disputes
• appeals involving public authorities
• a dispute where you have already tried ADR unsuccessfully – unless there are good reasons why it will work this time.

What is negotiation?

This is the simplest form of ADR. You try to negotiate with the other disputing party. You can do this in a meeting, on the telephone or in a letter.

When you are trying to negotiate, say that the discussion is ‘without prejudice’, or write ‘without prejudice’ on your letter. That way the negotiations cannot be used by either side if the situation eventually goes to court. But if an agreement is reached, both parties must go along with it, so make it clear what you agree and what you don’t.

If there is a meeting, think about taking a friend to help you. Prepare what you want to say beforehand. Remember that this is not the time to go through your whole case. You are trying to reach an outcome that is acceptable to both sides.

You may have to accept less than you want, so think about what is vital to you and what is not. If you are unsure what you should insist on, get advice from a solicitor or Citizens Advice.

If the other disputing party makes an offer in a letter, don’t dismiss it out of hand. It may be a genuine attempt to resolve the dispute. You can accept it or refuse it, and if you refuse it, you can make an offer of your own. Remember if you make an offer, the other disputing party can accept it, so make sure you are happy with it.

If negotiation leads to an agreement, that is the end of your dispute. You will then usually be asked to sign a document stating that you accept the terms of the agreements, and what those terms are. When you have made an agreement can’t re-open the dispute later. But if there is no agreement, then you’ll need to find another way to resolve your dispute.

What is mediation?

Mediation is a form of negotiation where a neutral mediator helps the two sides to come to an agreement. It is important to understand that the mediator can’t force either side to agree to anything.

You need to decide what kind of mediator you need.

If you have a complicated or high value dispute, you will need a trained mediator who also has a professional qualification, for example a solicitor or surveyor. The other disputing party may be part of a mediation scheme, which you can use if you want to. Or you can find a suitable mediator at reasonable cost from:

• Leasehold Advisory Service (LEASE), if you are in dispute with your freeholder
• Directories such as the Inter Medial Directory or the Centre for Alternative Dispute Resolution (CEDR), for other disputes

If you have a dispute with a neighbour you need a mediator who is trained but does not necessarily have a professional qualification. To get a suitable mediator, ask the council or a local advice agency.

If you are in dispute with someone in your community, there may be a community or religious leader who is willing to act as informal mediator. Make sure that s/he understands what you want, and that the choice is acceptable to both sides.

What happens at the mediation is confidential to the parties in dispute.

Think about taking a friend to help you. Prepare what you want to say before hand. Remember that this is not the time to go through your whole case. You are trying to reach an outcome that is acceptable to both sides. You may have to accept less than you want, so think about what is vital to you and what is not. If you are unsure what you should insist on, get advice from a solicitor or Citizens Advice.

If the mediation reaches an agreement, that is the end of your dispute. You can’t re-open it later. But if there is no agreement, then you’ll need to find another way to resolve your dispute.

What is arbitration?

Arbitration is an informal court hearing, where an arbitrator chosen by the parties decides what to do about the dispute.

If you are a flat owner, your lease may say that disputes with the freeholder must to go to arbitration. That means that you can’t use negotiation or mediation even if the freeholder agrees. If you arbitrate, the lease should say how to choose the arbitrator.

If you have a dispute with a surveyor who is a member of Royal Institution of Chartered Surveyors (RICS), you can use the Surveyors Arbitration Scheme. See the RICS website for details.

Arbitration is meant to be easy to use. But if your dispute is complicated or involves a lot of money, get advice from a solicitor or Citizens Advice. You can take on a simple and small case yourself, but think about asking a friend to help you, and prepare what you want to say before hand.

The decision reached by the arbitrator is final. Usually there can be no appeal.

What is third party determination?

Third party determination is where the two disputing parties ask an independent expert to decide a technical point or points. For example, an independent surveyor could be asked to say what work needs doing to your home, or to fix a new ground rent.

If you want to use third party determination, you need to agree with the other party to your dispute:

• what needs to be determined
• who should do it
• who should pay the third party’s fees
• that what the third party says is final.

This agreement needs to be in a letter, preferably signed by both sides. If your dispute is complicated or involves a lot of money, get advice from a solicitor or Citizens Advice.

The decision reached by the third party is final. Usually there can be no appeal.

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