Written by Alternative Dispute Resolution is no longer a soft extra at the edge of civil litigation. It is part of modern case preparation. For litigants in person, the key is to understand which process fits the dispute, when to use it, what it can achieve, and what risks remain if negotiation, mediation or another route fails.
Publication snapshot
- ADR includes negotiation, mediation, early neutral evaluation, arbitration, adjudication and ombudsman schemes.
- The court expects parties to consider settlement and ADR, but not every dispute requires the same process.
- Refusing ADR without good reason may affect costs, even where a party has an arguable case.
- ADR does not automatically stop limitation periods, suspend court deadlines or make a settlement enforceable.
Why ADR matters
Alternative Dispute Resolution, usually shortened to ADR, describes ways of resolving disputes without a full court trial. It can happen before a claim is issued, during proceedings, after disclosure, shortly before trial, or even after judgment where enforcement or payment terms remain disputed.
The practical reason is simple. Court proceedings can be slow, expensive, stressful and uncertain. ADR may allow the parties to control the outcome, preserve relationships, reduce costs, narrow the issues, agree practical terms, or resolve matters that a court might not be able to order.
The core distinction
ADR is not one single process. A negotiation, a mediation, an ombudsman complaint and an arbitration are different tools. The right question is not “should I do ADR?” but “which process, for which issue, at which stage, and with what objective?”
For litigants in person, ADR can be useful because it may be less formal than a hearing and may allow a dispute to be explained in practical terms. But ADR is not always suitable, and it should not be approached casually. A bad settlement, a missed deadline or an unclear agreement can create further problems.
This guide focuses mainly on ordinary civil disputes in England and Wales. Employment, family, consumer, financial services, housing, construction and specialist statutory disputes may have their own processes and time limits.
What ADR means
ADR covers a range of processes. Some are informal and voluntary. Some are structured by rules. Some produce a binding outcome. Others only help the parties decide whether they can settle.
| Process | What it does | Key warning |
|---|---|---|
| Negotiation | The parties communicate directly or through representatives to try to agree terms. | Settlement wording, confidentiality and “without prejudice” status need care. |
| Mediation | An independent mediator helps the parties explore settlement but does not decide the case. | A mediator is not a judge and usually does not give legal advice. |
| Early neutral evaluation | A neutral evaluator gives a provisional assessment of strengths, weaknesses or likely outcome. | The opinion may be persuasive, but the effect depends on the agreed process or court order. |
| Arbitration | An arbitrator determines the dispute, usually under an agreed contractual or statutory framework. | It may be binding and may limit later court challenge. |
| Ombudsman scheme | A sector body investigates eligible complaints and may recommend or require redress. | Eligibility, time limits and prior complaint steps must be checked. |
| Adjudication | A fast decision-making process commonly used in construction and some specialist disputes. | It is not general-purpose mediation and may have strict procedural rules. |
The choice of process should match the dispute. A neighbour dispute may suit mediation. A financial services complaint may need the firm’s complaint process and then the Financial Ombudsman Service. A construction payment dispute may raise adjudication. An employment dispute may require Acas early conciliation before a tribunal claim.
ADR is not automatically settlement
Using ADR means using a process. It does not guarantee agreement. A party should prepare for both outcomes: settlement and no settlement.
ADR and civil procedure
In civil litigation in England and Wales, ADR sits within the wider procedural culture of proportionality, cooperation, issue narrowing and settlement. CPR Part 1 requires the court to deal with cases justly and at proportionate cost. That now expressly includes promoting or using ADR.
The Pre-Action Conduct Practice Direction says litigation should be a last resort. It expects parties to consider negotiation or another form of ADR before proceedings are issued, and to continue considering settlement after proceedings have started.
Expected does not mean identical
The court may expect ADR to be considered, and may in an appropriate case order or encourage it. But the suitable process depends on the dispute, urgency, parties, cost, evidence, power imbalance and procedural stage.
A party’s silence in response to an ADR invitation, or refusal to participate, may be treated as unreasonable and may lead to costs consequences. That does not mean every refusal is unreasonable. It means the reasons should be thought through and recorded.
If a claim is urgent, limitation is close, an injunction is needed, evidence is at risk or a party is acting abusively, ADR may need to be managed alongside protective court steps rather than treated as a reason to wait indefinitely.
Choosing the right route
ADR works best when the parties know what they are trying to achieve. A vague hope that “something might be sorted out” is usually weaker than a clear assessment of issues, evidence, risk and settlement range.
ADR may be useful where
- both sides need a practical solution rather than a public judgment;
- the dispute is costly compared with the likely recovery;
- commercial, family, neighbour or workplace relationships matter;
- confidentiality is important;
- there is room for compromise on payment, timing, apology, repair or future conduct.
ADR may be difficult where
- urgent court protection is needed;
- a party will not engage at all;
- there is serious inequality of bargaining power;
- capacity, safeguarding, coercion or vulnerability issues arise;
- the dispute needs a binding legal ruling before anything else can move.
ADR is not weakness. It is also not surrender. It is a way of testing whether the dispute can be resolved without a full contested process.
A party should define its settlement objectives before entering ADR. That includes the best realistic outcome, the minimum acceptable terms, the non-negotiables, the evidence risks, and what happens if no agreement is reached.
Mediation
Mediation is one of the most common ADR processes. GOV.UK describes civil mediation as a flexible and confidential process used to settle disputes between people, businesses or organisations. A mediator is independent and impartial, helping the parties talk through issues and negotiate a solution.
Mediation can take place before legal action or while a case is ongoing. It can be in person, online, by telephone, in joint sessions, in private sessions, or by shuttle mediation where the mediator moves between the parties.
Prepare the issues
Know what is disputed, what is admitted, what evidence matters and what outcome is sought.
Prepare the documents
Use a short bundle or chronology. Do not bury the mediator or the other side in irrelevant material.
Prepare the range
Decide the opening position, fallback position and walk-away point before the mediation starts.
Prepare the wording
Settlement terms should be clear, enforceable and realistic. Ambiguous agreements cause later disputes.
Mediation can be quicker and less expensive than court, but costs vary. The GOV.UK civil mediation guide says parties should ask the mediation provider for costs in advance and notes that a Government free Small Claims Mediation Service may be available for money claims under £10,000.
The agreement trap
Do not leave mediation with a vague understanding if clear terms are needed. Payment dates, instalments, confidentiality, costs, discontinuance, release of claims, default consequences and tax issues may all need express wording.
Other ADR processes
Mediation is not the only option. Some disputes need an evaluative process. Some need a binding decision. Some need a sector-specific complaint route.
Evaluation or decision routes
- early neutral evaluation may help parties understand likely strengths and weaknesses;
- expert determination may suit a technical valuation or specialist question;
- arbitration may provide a private binding decision where the parties have agreed to it;
- adjudication may be relevant in construction and specialist payment disputes;
- court-led or court-ordered dispute resolution may arise in appropriate cases.
Before choosing one
- check whether the outcome is binding;
- check who pays the decision-maker or mediator;
- check confidentiality and without-prejudice rules;
- check whether limitation or court deadlines remain live;
- check whether legal advice is needed before agreeing terms.
Some processes are consensual. Others may be required by contract, statute, court order or procedural rule. A party should not assume that calling something ADR makes it voluntary, confidential, non-binding or risk-free.
The Court of Appeal’s decision in Churchill v Merthyr Tydfil County Borough Council confirms that the court may, in principle, order or stay proceedings for non-court dispute resolution where the order is proportionate and does not impair the essence of the right to a fair trial.
Sector-specific routes
Some areas have their own dispute-resolution routes. They should not be treated as ordinary optional mediation.
Examples
- Acas early conciliation for many Employment Tribunal claims;
- the Financial Ombudsman Service for eligible financial services complaints;
- housing, property, telecoms, energy, consumer and professional ombudsman schemes;
- family mediation and non-court dispute resolution routes;
- school, healthcare, SEND and public-service complaint processes.
Check first
- whether the scheme has jurisdiction;
- whether the other side must be given a chance to respond first;
- whether there is a time limit;
- whether the outcome is binding on one or both sides;
- whether using the scheme affects court or tribunal strategy.
Acas says early conciliation is a legal process and that a person must notify Acas if they want to make a claim to an Employment Tribunal. Acas also says early conciliation is voluntary once offered, that Acas does not take sides and does not give legal advice.
The Financial Ombudsman Service says bringing a complaint to it is free, but consumers should usually first give the financial business a chance to sort matters out. If the business does not respond within eight weeks, or if the consumer is unhappy with the final response, the complaint may be capable of referral to the Ombudsman, subject to its rules and time limits.
Costs and limitation
ADR can save money, but it can also add cost if used badly. A failed mediation after poor preparation may simply add another layer of expense. Arbitration or expert determination may be costly. Ombudsman schemes may be free to consumers but not available for every dispute.
Limitation is a separate risk. The Pre-Action Conduct Practice Direction states that pre-action protocols and the Practice Direction do not alter statutory time limits for starting proceedings. If proceedings are issued after the relevant limitation period, the defendant may rely on that as a defence.
ADR is not a clock-stopper
Negotiation, mediation, complaint handling or waiting for a response does not automatically pause limitation. If time is close, a standstill agreement, protective issue or urgent advice may be needed.
Costs consequences can cut both ways. A party who unreasonably refuses ADR may be criticised later. But a party who uses ADR tactically, causes disproportionate cost, ignores deadlines, or enters an unclear settlement may also create risk.
For litigants in person, the safest approach is to keep a written ADR record: invitations sent, responses received, reasons for refusing or proposing a process, costs considered, deadlines checked and settlement terms drafted.
ADR decision flow
Use this as a practical risk filter before proposing or refusing ADR. It is not a substitute for legal advice.
Identify the dispute
What is actually in issue: money, apology, repair, performance, documents, relationship, conduct, or legal precedent?
Choose the process
Negotiation, mediation, ombudsman, early neutral evaluation, arbitration or adjudication may serve different purposes.
Check timing
Limitation, court deadlines, evidence preservation, pre-action protocol steps and urgency all affect timing.
Prepare settlement terms
Payment, costs, confidentiality, enforcement, release of claims and default consequences need clear wording.
Record the position
If ADR is proposed, refused, paused or unsuccessful, record the reasons and next procedural step.
Practical checklist
ADR should be prepared with the same discipline as litigation. The process may be less formal, but the legal and practical consequences can still be significant.
Before ADR
- identify the live issues;
- check limitation and court deadlines;
- prepare a short chronology and key documents;
- decide your settlement range;
- check whether legal advice is needed before signing terms.
During and after ADR
- keep settlement discussions separate from open correspondence;
- do not agree terms you cannot perform;
- write down any agreement clearly;
- consider costs, confidentiality and enforcement;
- if no agreement is reached, preserve the procedural record.
ADR is often most effective when the parties understand the strengths and weaknesses of the case. It is rarely helped by concealment, overstatement, tactical silence or refusal to engage with obvious evidence.
It is also important to know when not to settle. A bad settlement can be worse than a managed dispute. The point of ADR is not agreement at any price; it is informed resolution where resolution is possible.
The Legal Lens point is simple: ADR is not a detour from serious case preparation. It is one of the tools of serious case preparation. Use it early enough to matter, carefully enough to protect your position, and clearly enough that any agreement can actually be enforced.
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