ALTERNATIVE DISPUTE RESOLUTION STRATEGIES
It is now a quarter of a century since the Woolf Reforms and the Civil Procedure Rules (CPR) which brought alternative dispute resolution (ADR) to the forefront of English legal public policy. This push continues, with a further consultation on mediation in the civil justice system held in 2022 – initially focused on small claims, but possibly heralding a greater role for court-administered ADR processes. The approach of the courts, practitioners and legal thinkers continues to evolve, in ways that can risk leaving behind the awareness and strategies of commercial parties. This article considers where the courts are now, and how businesses’ strategies need to continue to adapt. It considers some of the strategic options open to parties across the dispute resolution spectrum. Finally, it will look at some of the specific approaches to mediation and negotiation that can set the conditions for success.
Commercial contracts have long included tiered dispute resolution clauses, often with requirements for the parties to conduct meetings or negotiations before litigating. These potentially serve a purpose in focusing parties’ minds before going to court. However, such ‘agreements to negotiate’ were historically considered unenforceable as they usually lacked legal certainty, and it is arguably pointless to oblige a party to do something which must be undertaken willingly to have any prospect of success.
That has changed over the last decade, partly in response to developments in other common law jurisdictions. In Emirates Trading Agency LLC v. Prime Mineral Experts Pte Ltd, the English court upheld a provision obliging the parties to “seek to resolve the dispute or claim by friendly discussion”, staying an arbitration in order to do so.
Jul-Sep 2023 issue
Norton Rose Fulbright LLP