Until recently, if you had a legal problem, you would normally have gone to a court or tribunal in what is often called 'litigation'. While this is still a common way of sorting out such problems, individuals often find that going to court is expensive and can be stressful.
There are now a number of other ways of sorting out complaints and legal problems, including things like arbitration, mediation and ombudsmen schemes. These are often called 'alternative dispute resolution' (ADR) schemes.
Court rules require you to think about whether alternative dispute resolution is a better way to reach an agreement before going to court. If you refuse to consider this, you may not get your costs back, or the court may order you to pay the other party's costs, even if you win the case.
ADR schemes are not meant to replace the courts in all cases. But they can have advantages over going to court. These advantages include:
You can also use some ADR schemes as well as going to court or a tribunal. For example, mediation can help everyone focus on the issues that are causing the problem, making it easier for you to reach an agreement or for a judge to make a decision.
Remember that either side in a disagreement can suggest using an ADR scheme to solve the problem.
Court rules also now say that you must think about whether some form of ADR is a better way to reach an agreement before you go to court. If you refuse to try ADR before going to court without having a good reason, you may not get your court costs back, even if you win your case.
How you choose to solve your problem depends on:
You can get different things by going to court than from ADR. By going to court, you might get:
What you want to achieve may not be possible for your particular problem, and it's important to know this before starting out. For example, you might want to use mediation to get a full explanation of what went wrong. But if the other side isn't willing to take part in mediation, this won't be possible.
Another important factor is identifying who the other side is – who is responsible for what happened. In some cases this is straightforward. But in others (some consumer disagreements, for example), it can be difficult to identify the person who gave you the service or made the decision, and the person who is legally responsible.
In cases of discrimination at work, for example, employers are often responsible for what their employees do. In the case of a complaint about neighbour nuisance the neighbour or the landlord might be the right person to approach. If you are not sure who is responsible, an adviser should be able to help you.
You will need to find out if the ADR service can produce the result you want. For example, if you have been injured during medical treatment and your main priority is to get compensation, you are unlikely to get that through the NHS complaints procedure or the Health Service Ombudsman. But if you feel that alerting people to the problem is the most important thing, so that it doesn't happen to someone else, you will have a better chance of getting this from the Health Service Ombudsman.
No single form of dispute resolution can give you everything you want. The result is only one thing to think about – how the problem is resolved can be just as important. Things to think about include:
When thinking about your options, remember to take into account your own costs and expenses, such as travel, childcare and time off work.
The time it takes to use an ADR process can be a major factor. Some matters are very urgent and important and going to court is the only safe option (for example, if you are in danger of losing your home). You can, however, follow up court action with another process, such as mediation, to deal with other parts of a problem, or perhaps to discuss the solution in more detail.
Remember that some methods have to be the last thing you try, not the first. This is because those methods are 'binding' (which means that both sides, or sometimes just one side, must do what they are told to or agree to). If you use a binding method, you can't go on to use a different method if you are unhappy with the result.
Also, in some cases, you can't use two methods at the same time. For example, you cannot take your problem to court and to an ombudsman at the same time.
Remember that for some types of problem there is a time limit for taking a case to court or to another dispute resolution process. So if you are using one process, you need to be sure that it will not put you beyond the time limit for taking your case elsewhere if you need to. For example, this is particularly important in employment disputes.
These involve an independent mediator (someone who doesn't take sides and who won't gain or lose anything by the outcome). They will help you and the other person or company find a solution to the problem. You and your opponent, not the mediator, decide what will happen and the terms of any agreement you make. But the process is voluntary so you cannot force the other person or organisation to take part.
Mediation and conciliation themselves are not binding unless there is a signed mediated agreement which is effectively a contract and valid between the two parties. A court may also be approached to turn a mediation agreement into a consent order which is then enforceable through the courts. What is said in a mediation session is confidential, so it cannot be used in court later. Only the resulting agreement can be enforced by the court. In practice, people tend to keep to a mediated agreement because they have prepared its terms themselves.
You can use mediation and conciliation for a range of different problems. We have included contact details for most of the organisations providing mediation and arbitration services at the end of this section.
Any problems to do with a divorce or separation can go to mediation. These include:
If you have a disagreement with a neighbour, for example, about noise or harassment, you can try to sort it out using community mediation. Contact Mediation UK for details of your nearest community mediation service. Community mediation is usually free to local residents. The issues community mediation can deal with include:
You can try to solve many employment disagreements through conciliation or negotiation, including problems to do with:
If you have a disability and you feel you have been discriminated against by a retailer or service provider, you may be able to use the Disability Conciliation Service. Contact the Disability Rights Commission in England and Wales or the Equality Commission in Northern Ireland for advice or referral to the scheme.
If you feel you have been treated less favourably at work because of a disability, your sex or your race, you can consider using conciliation or mediation provided by Acas or LRA.
Harassment and discrimination claims at work or between neighbours can also be sorted out using mediation. The best way to find a service is to contact Mediation UK.
You may be able to use a mediation service to help sort out a problem about:
You may be able to use mediation for a range of other problems, including:
This is sometimes described as a private version of going to court. It involves an independent arbitrator who is impartial (someone who doesn't take sides, and who won't gain or lose anything by the outcome). The arbitrator will hear both sides of the disagreement and make a decision that will solve the problem.
Arbitration can only be used if you and the person or company you have a dispute with both agree that you want to go to arbitration. The process is confidential and so is any amount of compensation that the arbitrator awards. Sometimes the arbitrator makes their decision based on papers that each person gives them to support their case. At other times they hold a hearing where both sides can present their cases. However, this hearing is less formal than a court hearing.
The result of arbitration is binding, so you can't take your case to court after the arbitrator has made a decision, unless the arbitrator has made obvious legal mistakes or behaved improperly.
Arbitration can be used for a range of problems, for instance, disputes about goods and services.
Trade associations for different companies often have arbitration schemes. Some of them run their own schemes, but others are run by an independent organisation called the Chartered Institute of Arbitrators (CIArb).
One example is the Association of British Travel Agents (ABTA), which can arbitrate on, for example, a disagreement about holidays.
If you have a complaint with a business, and they are a member of a trade association, ask the trade association whether they have an arbitration scheme to deal with your problem. You can also contact the Chartered Institute of Arbitrators to see which organisations they run arbitration schemes for.
In expert determination, an independent person looks at the case and gives a decision. The person making the decision is usually an expert in the subject of the disagreement. They are chosen jointly by both sides, who agree from the start to be bound by the expert's decision.
Expert determination can be best for deciding technical areas of a complex disagreement.
With this option an independent person looks at the claims made by each side and gives their opinion either on:
Early neutral evaluation can help work out where the real problem lies, and make both sides think more clearly about results by giving an independent view of the arguments. The evaluator is often chosen because of their expertise in the subject matter of the disagreement. They may also be a lawyer with litigation experience.
These are usually the first stage of resolution for many disagreements you have with companies or government departments. In some cases, you cannot use another method of sorting out a problem (such as an ombudsman) if you have not gone through the complaints procedure.
The best complaints procedures are usually those where complaints are handled at a local level, often informally. This can be best for everyone. However, many complaints procedures do not have time limits, so sorting out a problem can take a long time. Also, complaints procedures are not independent, because they are drawn up and handled by the organisation you have your problem with.
If you are frustrated by a complaints procedure and feel you have done everything possible to sort out the problem by using it, find out what the next stage is. This is often referral of the dispute to an ombudsman which we discuss below.
This involves dealing directly with the person or organisation you have a problem with. You can do this yourself, or you can get a representative (such as an adviser or solicitor) to do it for you.
Negotiation is an extremely important first step. It starts with you approaching the other side with details of your complaint and suggestions for how it can be sorted out. The other side does not need to agree to take part before you (or your representative) approach them. If you find yourself needing to take a dispute to court, it is imperative that you show that you have tried to resolve the problem by negotiating before resorting to a court claim. Whilst not compulsory, the court will frown on litigants who have ignored the option of negotiation
The process is not binding, although both sides can agree to make a negotiated agreement into a legally-binding contract or order. This would mean that you could then take the other side to court if they didn't do what they had agreed to. In some types of dispute, such as medical negligence and housing disrepair, the courts say you must try to negotiate with the other party before applying to court.
Most disagreements can be solved through negotiation. A common example is settlement discussions between solicitors. More than nine out of ten legal claims are settled without needing a trial.
Negotiation is different from conciliation and mediation in that the person negotiating for you:
Ombudsmen are independent 'referees' who look at complaints about public and private organisations. They are often a last resort when complaints cannot be sorted out through an organisation's own complaints procedure. Ombudsman services:
In most cases, the ombudsmen dealing with public organisations (such as local authorities or government departments) can only review how a decision was made and say whether:
There are ombudsmen schemes for a range of different consumer complaints, including:
If you have a complaint about a solicitor, you can complain to the Legal Complaints Service (LCS). If you are unhappy with how the LCS has handled your complaint, you can then go to the Legal Services Ombudsman. In Northern Ireland complaints are made through the Law Society of Northern Ireland.
If you have a complaint about any treatment you've received from the NHS, you can take your case to the Health Service Ombudsman and the Northern Ireland Ombudsman. However, the ombudsman will only look at your case if you have already been through the NHS complaints procedure and you are not happy with the result.
The Health Service Ombudsman and Northern Ireland Ombudsman can consider various complaints, including those about:
The Housing Ombudsman Service and the Northern Ireland Ombudsman deal with complaints from people who have a 'registered social landlord'. These are normally housing associations, but may also be landlords who manage homes that used to be run by local councils. Some private landlords are also members of the Housing Ombudsman scheme in England and Wales. In England and Wales the Local Government Ombudsman (LGO) deals with complaints from tenants in local authority housing.
If you have a complaint about a local authority (council) you should contact the Local Government Ombudsman or the Northern Ireland Ombudsman.
They will look at complaints about most services provided by your local authority including:
If you have a complaint about a government department, you can take it to the Parliamentary Ombudsman and/or the Northern Ireland Ombudsman. If your complaint is about the National Assembly for Wales and some public organisations concerned with Welsh issues, you can take it to the Public Services Ombudsman for Wales. The Parliamentary Ombudsman or Northern Ireland Ombudsman will look at a range of complaints, including those about:
If you want to take your complaint to the Parliamentary Ombudsman, you must first send it to a member of parliament (MP). They will pass it on to the ombudsman. In Wales, you can complain directly to the Public Services Ombudsman for Wales and, in Northern Ireland, you can complain directly to the Northern Ireland Ombudsman.
If you have a complaint about the Child Support Agency, you can take it to the Independent Case Examiner.
There are regulators that oversee the way gas, electricity, water and telephone companies behave. The three main regulators in England and Wales are:
However, regulators do not normally deal with individual consumer complaints. You will need to follow a certain procedure in each case and can find links to our pages on the steps you will need to take:
When working out how much it will cost to deal with a problem, you need to take into account:
The general principle that applies in civil courts in England and Wales and Northern Ireland is that the 'loser' pays the other side's costs as well as their own, except in the family courts, where each side normally pays their own costs. In alternative dispute resolution, the general principle is that each side pays their own costs.
You should also be aware that if you unreasonably refuse to consider a form of ADR before or during civil litigation, then you may not get your legal costs back, even if you win.
Mediation costs can vary, depending on the type of mediation. For example:
Most consumer arbitration schemes run by the Chartered Institute of Arbitrators cost between £10 and £100, but some are free. And if you win your case, you will get back any fee you have paid.
Ombudsman schemes tend to be the least expensive to use, as they are free to the person complaining. Community mediation doesn't cost much either. It usually involves face-to-face meetings, so you may have to pay travel and other expenses, but you may be able to get these back as part of a mediated agreement if both sides agree to this.
You may have to pay for travel expenses, childcare costs, and time off work if you have to go to a hearing. Photocopying evidence can be expensive, so don't forget this cost if you are using a process such as arbitration where you have to provide many documents.
You may be able to get help with the costs of using an ADR scheme if you are eligible for public funding. This will depend on whether you can afford to pay and if you meet other conditions. If you meet these conditions, you may get help with:
Providers of arbitration and mediation
Services that cover England and Wales unless stated otherwise: