WEIGHING UP LITIGATION, ARBITRATION AND MEDIATION
Commercial parties have an increasing number of options available to them when things go wrong, and they end up in dispute. While court litigation and arbitration are the two traditional routes chosen to resolve commercial disputes, there are various ‘alternative’ options, including mediation, that are typically deployed either before commencing litigation or arbitration or once that formal process is already on foot. By engaging in alternative dispute resolution (ADR) at an early stage where appropriate, parties may be able to avoid the time and cost of litigating or arbitrating altogether.
Weighing up the pros, cons and suitability of the different methods of dispute resolution at the outset of the relationship or transaction is key. When negotiating and drafting their contracts, parties often fail to give sufficient thought to what will happen in the event of a dispute. Dispute resolution and governing law clauses tend to be an afterthought in many cases, as parties’ efforts are focused on getting the deal done. Careful thought and drafting with input from specialist advisers can save parties the unnecessary time and cost of arguing later down the line about how, and even where, to resolve their dispute – when parties’ positions may be entrenched and their relationship frayed.
The suitability of a particular dispute resolution option, or combination of options, will depend on the circumstances, parties’ needs and the likely nature of any dispute.
Litigation
English courts are widely recognised as among the best arenas for dispute resolution in the world. In particular, commercial parties are attracted by the impartiality of the judicial system and the experience and powers of the specialist Business and Property Courts, such as the Commercial Court and Technology and Construction Court, to cater for the needs of domestic and international businesses from a range of industry sectors.
Apr-Jun 2022 issue
Walker Morris LLP