Litigation is only one way to settle a legal dispute. There are other mechanisms disputing parties can use to resolve their differences depending on their needs and circumstances.
The alternatives to litigation are usually private processes in which the existence, nature and outcome of a dispute can be kept confidential to the parties. Litigation is almost always conducted in a public forum and is bound by the rules of court. The procedures used in private dispute resolution are typically more flexible – even when governed by law – allowing parties to formulate rules to limit costs or provide outcomes that may not be possible if proceedings were conducted in a court.
Mediation is a process in which parties negotiate an outcome facilitated by an independent third party they jointly appoint; a mediator. It is commonly used even in cases where litigation has commenced and it is often the court that orders mediation. The court may also appoint the mediator or leave it to the parties to together appoint the mediator.
A mediator does not advise the parties or determine an outcome. The role of the mediator is to help parties communicate more effectively, clarify their positions and, ideally, settle their differences. Parties to mediation are not bound to settle, although there are hybrid forms of mediation that can achieve a binding outcome. Settlement usually requires compromise, which inevitably means making concessions, however it gives parties the certainty of a negotiated outcome rather than one imposed by decision-makers.
Collaborative practice involves a series of meetings in which the parties and their legal representatives working constructively, without formal mechanisms, to resolve a dispute. It requires more collaboration between the parties’ legal representatives than would usually be seen in adversarial proceedings and often takes place in the context of an agreement that the parties will not litigate. The parties themselves may take the lead role in negotiations including with experts from outside the law, such as financial planners or health professionals who can provide parties with advice and support when its most needed.
Arbitration and adjudication
Arbitration and adjudication are not unlike litigation in that they involve an impartial decision-maker who issues a ruling (or award). Both processes can be less formal and more flexible than litigation. The rules (including as to appointment and enforcement) are either contained in a statutory regime or are privately regulated by contract. For example, where it is governed by a statutory regime the appointment process may be mandated, but the procedures can be agreed by the parties even if some aspects are still governed by legislation. In private arbitrations, the outcome may or may not be binding, depending on what the parties have agreed. Adjudication is preferred in certain industries, (such as construction).
Expert determination is where parties submit a contested issue to a decision-maker with specialist knowledge or training in the relevant area. It can be used at any stage in the dispute resolution process to resolve discrete issues and thus narrow the scope of a dispute. It is most suited to technical aspects of a dispute. The expert may or may not be a legal practitioner, depending on the subject matter. Parties will usually agree in advance on the process of determination, including whether they will be bound by the expert’s decision or, in suitable cases, how other disputed matters might be dealt with depending on the view of the expert.
Early neutral evaluation
Early neutral evaluation is where the parties engage a suitably qualified impartial evaluator to assess their dispute. It can be useful in resolving disputes soon after they arise and before substantial costs are incurred. The role of the evaluator is to identify the strengths and weaknesses of the parties and to indicate how the dispute is likely to be decided if it progresses to a more formal resolution process (like arbitration or litigation). The evaluator can clarify and potentially narrow the issues to be resolved if adversarial proceedings become necessary.