Litigation is mostly a non-private, structured, expensive, adversarial, process where a Judge will decide a case based upon the issues and evidence put before the court. It is not however a very flexible process, each party must formally put their case in statements of case, in witness statements and bundles of documents. On the other hand, ADR is a set of dispute resolution processes for finding a solution of the parties’ own devising.
It is an alternative to litigation, where normally there is no judge, arbitrator or tribunal to tell the parties what the answer is or will be. The parties themselves choose the form of their preferred resolution process, appoint a neutral intermediary or facilitator to assist them, and then negotiate an appropriate solution, which they both find acceptable.
The court may not order parties to use ADR as this might be an obstruction of the right of access to court. However, the Court of Appeal has recognised that although a court may not compel the parties to use ADR, the court may use robust encouragement and it has recognised the success rate of mediation at an early stage of the dispute. Whilst doing nothing may is sometimes the right answer, ADR might be an alternative that is quick, confidential and cost effective