It may be possible to settle a dispute without going to court. Negotiation, mediation or arbitration is could be quicker, less stressful and cheaper.
Why choose negotiation or mediation?
Taking a case to court can be a long, complicated and expensive process.
It may not always get you the result you want – for example, if you're seeking an apology or explanation from someone as well as compensation.
Things you can do that don't involve starting a court case are often referred to as 'alternative dispute resolution' or ADR. They include:
- negotiation – talking to the other party to try to reach an acceptable solution
- mediation – a neutral person helps you and the other party resolve the problem
- arbitration – an informal court hearing, where a third party (the arbitrator) makes a final and binding decision
- third party determination – where an independent expert is brought in to decide a technical point or points.
Using these alternatives is almost always quicker, less stressful, and cheaper than taking a case to court. They can often help you get a better outcome.
You can use ADR to deal with almost any dispute or disagreement. Usually both of the disputing parties need to agree to it.
Some tenancy and leasehold agreements say that you have to try these options before taking any further action.
Even if a court case has already started, it's possible to try to solve the problem through out-of-court alternatives at the same time.
Find out more from AdviceGuide about ADR.
How negotiation works
Negotiation is the simplest way of settling a dispute without getting the courts involved. You and the other party discuss the problem. You try to find a solution that's acceptable to both of you.
This can be done in a face-to-face meeting, on the telephone or in a letter. Several discussions might be needed before you can reach a negotiated settlement.
When you are trying to negotiate, explain that the discussion is 'without prejudice'. That way either side cannot use the negotiations if the situation eventually goes to court.
If an agreement is reached, both parties must go along with it. Make it clear what you agree with and what you don't.
Prepare what you want to say before the meeting. Remember that this is not the time to go through your whole case. You are trying to reach an outcome that's acceptable to both sides. You may not get everything you want. Think about what's vital to you and what isn't. You can take a friend or family member to support you.
If negotiation leads to an agreement, that is the end of your dispute. You are then usually 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 you can't re-open the dispute later.
If there is no agreement, then you need to find another way to resolve your dispute.
How mediation works
Mediation is where a neutral mediator helps the two sides to come to an agreement.
The mediator can't force either side to agree to anything. What happens at the mediation is confidential to the parties in dispute.
Find out what kind of mediator you need. If you have a complicated or high value dispute, you need a trained mediator who also has a professional qualification, for example a solicitor or surveyor.
The party you're in dispute with 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
- 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 doesn't necessarily have a professional qualification. To get a suitable mediator, ask the council or a local advice agency.
Use our advice services directory to find a local advice agency.
The dispute comes to an end if the mediation reaches an agreement. You can't re-open it later. But if there is no agreement, then you need to find another way to resolve your dispute.
How arbitration works
Arbitration is an informal court hearing. It involves an arbitrator chosen by the parties who decides what to do about the dispute.
If you hold the lease to a flat and are in dispute with the freeholder, your leasehold agreement may say that you have 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.
You can use the Surveyors Arbitration Scheme if you have a dispute with a surveyor who is a member of Royal Institution of Chartered Surveyors (RICS).
Arbitration is meant to be easy to use. Get advice from a solicitor or Citizens Advice if your dispute is complicated or involves a lot of money.
You can take on a simple and small case yourself, but think about asking a friend to help you. Prepare what you want to say in advance.
Decisions made by the arbitrator are final. You can't usually 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.
Get advice from a solicitor or Citizens Advice if your dispute is complicated or involves a lot of money.
The decision reached by the third party is final, and appeals aren't usually allowed.
When you shouldn't use these alternatives
There are some circumstances where it isn't appropriate to use alternative processes such as mediation or negotiation.
- serious crime, such as a theft or violent assault
- trivial disputes
- appeals involving public authorities
- a dispute where you have already tried these approaches unsuccessfully, unless there are good reasons why it will work this time.
Report any problems, such as something needing repair, noise or antisocial behaviour to your landlord as soon as possible.
Get advice from a solicitor about bringing a claim for compensation for a serious injury or a large claim for money.
The solicitor may then advise you on a course of action that doesn't involve the courts, but only when your claim has been properly assessed and calculated.
Find out more from AdviceGuide about going to court.
Last updated 02 Jan 2014 | © Shelter