Professional Negligence Pre-Action Protocols

Step Eight - Alternative Dispute Resolution

Court proceedings should be a last resort. The parties should consider whether some form of alternative dispute resolution procedure, might enable them to settle their dispute without commencing court proceedings, and if so, endeavour to agree which form to take.

• Parties may negotiate to settle a dispute or may use a form of ADR including:
• Mediation – a third party facilitating a resolution
• Arbitration – a third party deciding the dispute
• Early neutral evaluation – a third party giving an informed opinion on the dispute
• Adjudication – a process by which an independent adjudicator provides the parties with a decision that can resolve the dispute either permanently or on a temporary basis, pending subsequent court determination
• Ombudsmen schemes.

If court proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s refusal to engage or silence in response to an invitation to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional costs.

See here for Step Nine - Stocktake