No one enters into an agreement foreseeing conflict, but when disputes nevertheless arise, the impact they can have on the parties involved is significant.
Traditionally, dealing with a dispute consists of litigation through the courts. While this type of litigation certainly has its place, it remains an often lengthy and costly endeavour, and does little to preserve reputation and goodwill between parties.
Undoubtedly, the need for legal dispute resolution that is both effective and efficient is paramount when one finds themselves in such a dispute. However, with rapid shifts in both our societal and technological landscape, the legal sector must embrace new ways of approaching dispute resolution if it is to keep pace.
So, what shifts are we seeing in legal dispute resolution, and how can lawyers and the legal field as a whole embrace these changes for the better?
Technological advancements
Not so long ago, parties involved in a legal dispute might brace themselves for what could be a long, drawn-out process of resolution through the courts. Today, the prevalence of technology in nearly every aspect of our lives has created the potential for more streamlined, efficient ways of dealing with disputes.
This new era of legal technology has bought with it a wide scope of application, with the potential to create efficiencies at various stages of the dispute resolution process, resulting in faster, more cost-effective resolutions.
The advent of artificial intelligence and machine learning has the potential to increase efficiency and decrease human error at the discovery stage, while online dispute resolution (ODR) offers a different way to conduct disputes. In our digital age, disputes arise in both online and offline spaces, and ODRs enable the use of virtual spaces to reduce both time and cost.
Alternative dispute resolution
Formal litigation through the courts remains an unavoidable part of dispute resolution in some cases. However, increasingly, there is growing interest in alternative dispute resolution (ADR), through negotiation, mediation or arbitration, due to their ability in helping parties resolve disputes outside of the courts.
The nature of ADRs avoids a costly and drawn-out process, but they also bring the additional benefit of helping to preserve an ongoing relationship, whether that be personal or commercial, and avoid unnecessary hits to reputation or goodwill between parties.
In these cases, it becomes the job of legal counsel to really understand the root cause of the dispute, the factors involved and what could be at stake. Getting to the crux of the issue early on helps inform the best approach to take, minimising potentially negative impacts, and maximising the chances of a positive and productive outcome.
Adversarial reduction
Litigation, and to a lesser extent, arbitration, are necessarily adversarial processes. Parties have little to no control over the outcomes imposed on them by either the court or the arbitrator, often resulting in one, or even both, parties feeling they have lost in the process.
Other ADRs, particularly mediation, help to reduce this sense of adversarialism due to its nature as a less 'legalised' process, restoring a sense of control to the parties involved. The benefit here is not only to those involved in a dispute, but to legal counsel too, where a tone of constructive engagement is set early on, with parties working towards an amicable solution.
So valuable is this approach that the United Nations Convention on International Settlement Agreements Resulting from Mediation, know as the Singapore Convention, has been signed by 56 countries to date, with the UK signing in May 2023. This rallying point highlights the value of mediation as we move into a new age of dispute resolution.
Conflict avoidance
While ADRs offer necessary and valuable mechanisms for addressing disputes that have already reached a boiling point, we are also seeing a cultural shift towards conflict avoidance – that is, preventing disputes from crystallising to the stage where resolution mechanisms are required at all.
We are slowly but surely beginning to see a paradigm shift towards this model, one in which the legal sector plays a central role. Structuring relationships and agreements from the beginning in such a way as to reduce the scope of potential conflict and dispute is key, and this can be achieved through clear, precise contract documentation that seeks to reduce ambiguity and generalisation, as well as employing proactive planning and clear communication.
If the goal is, as it should be, to minimise the negative impacts of disputes, no approach can be as effective as avoiding them from the outset, and preserving commercial partnerships, goodwill and reputation in the process.
The future of dispute resolution
Amidst shifting cultural, societal and technological factors, we are seeing the changing future of dispute resolution. The prevalence of ADRs, integrated with digital advancements and virtual spaces, as well as a wider cultural shift within the legal sector, are all disrupting how disputes are resolved.
By changing how we look at disputes, and shifting focus towards conflict avoidance and a reduction in adversarial activity, the legal sector is continuing to cement the UK’s position as a leader in dispute resolution worldwide.
Yulia Barnes is founder and managing partner of Barnes Law
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