Getting the ‘Adversary Factor’ out of Disputes and Disagreements
Dispute resolution is an intricate field. The term Alternative Dispute Resolution or ADR embraces only those methods of resolving disputes that do not involve court action
Preparing for a conciliation conference
THE TERM ALTERNATIVE dispute resolution embraces only those methods of resolving disputes that do not involve court action, so it employs processes such as adjudication, arbitration, conciliation, and mediation.
John Farage O’Brien are expert in all these methods and in supporting legal teams with specialist advice
ADR yields many benefits, which range from far greater flexibility in procedures, costs normally way below those of traditional litigation, and speedy resolution of disputes as long as the parties to the dispute are committed to engage in a meaningful way.
A very clear benefit of ADR in comparison to court proceedings is privacy and confidentiality. While court cases are open to the public and proceedings may be published, all dispute resolution proceedings take place in private, behind closed doors, and parties are generally bound by non-disclosure clauses in any settlement.
We take strategic considerations fully into account: for us, these play an important part in deciding how to handle disputes, so we provide strategic analyses to clients where a case may have effects and consequences beyond the immediate issue or in the longer term.
This is the fifth field, which director John FFF O’Brien describes as ‘political’, in the sense that experienced directors may need to make decisions on the final resolution of a dispute which can reap a long term benefit for the company in spite of immediate sacrifices — akin to “losing the battle to win the war”.
ADR is widely used in commercial contracts. Parties to contracts often find themselves prevented from proceeding to Court by being ‘stayed’ to refer their dispute under contract to binding arbitration which has been expressly agreed by the parties, sometimes without realising it, at the time of contract. Arbitration clauses have become almost universal in all standard forms of construction contract and are usually preceded by a mandatory, step-down conciliation or mediation process before proceeding to full arbitration.
Mediation is fast becoming the norm for parties to resolve their differences, and to do so with the aid of a third party who helps the disputants to actively identify for themselves where the resolution may lie. When a party to a mediation truly identifies where the dispute lies, and identifies what is important to the other party, an agreed settlement will usually follow.
“Directors may need to make immediate sacrifices in the final resolution of a dispute, in order to reap a long term benefit for the company — akin to losing the battle to win the war
The Irish courts fully endorse mediation, and where one party is approached by the other to attempt to mediate a dispute but fails to do so, that party could find itself losing its costs, even if it succeeds ultimately in court. The parties in dispute must agree to use one or more of these processes, either before or after a dispute has arisen. John Farage O’Brien are expert in all these methods and in supporting legal teams with specialist advice.