The Nationwide Academy for Dispute Resolution

ENGAGING IN THE ADR PROCESS

ADR service providers have standard forms to enable parties to a dispute to refer that dispute to ADR. The forms can often be downloaded from the net. Many lawyers' offices hold copies. ADR service providers will supply forms upon request.

1 TERMS IN A CONTRACT PROVIDING FOR ADR IF NEEDED.
An ADR provision may be built into an agreement. The Construction and Maritime Industries frequently make use of ADR clauses. It is wise when concluding an international agreement to provide for the law of the state that applies to the contract. Once the parties have put their minds to this matter they often go one step further and provide for ADR at the same time, eg English Law and London Arbitration. It is even better if the clause specifies the ADR service provider and the rules governing the ADR process. This ensures that there is no need to agree these details later. Frequently the parties to an open agreement fail to agree on the details after a dispute arises and are forced to go to court to ask a judge to decide for them.

If an ADR provision is built into a contract the parties are obliged to exhaust that process before attempting to go to law. Submission to the ADR process then becomes a mandatory pre-requisite of court action. It is too late, once a dispute arises, to change one's mind and decide to go to court instead. The voluntary aspect of ADR lies in that the parties choose to adopt the ADR clause in the first place. However, even after a dispute has arisen, the parties can reach a mutual agreement to dispense with ADR and go to court instead.

Many contracts do not make any provision for dispute settlement mechanisms because it is not something that the parties think about at the time. No one stops to consider what will happen if something goes wrong, how the dispute might be settled, how much time and money it might take to settle the dispute or what adverse effects a protracted dispute might have on their businesses and their relationship.

2 AGREEMENTS TO SUBMIT A DISPUTE TO ADR.
Even if there is no ADR provision in a contract, once a dispute arises, the parties are free to agree to refer the dispute to an ADR process rather than go to law. Disputes which have nothing to do with contracts, such as accidents, can likewise be referred to an ADR process if the parties wish. However, in these circumstances both parties have to agree to the reference. If only one party wishes to use an ADR process the other party can ignore that wish and go to law instead.

Legislation encouraging the use of ADR :
Under the new Civil Procedure Rules 1998 lawyers must advise clients of the benefits of ADR and where a judge thinks ADR is advantageous the court may recommend that the parties try out ADR first. A party can ask the court to give them time to go to ADR. The court has the power to adjourn court hearings pending an attempt at settlement using ADR. There is no requirement to advise a client to incorporate an ADR clause in a contract.