Magical Mediation: Elves' Approach to Dispute Resolution

Commercial Dispute Resolution team |13 December 2023

As the festive season came ever closer, Buddy and Chip were eagerly finalising their new workshop. However, they hit a snag: a contractor, Elf, who was responsible for installing the toy-making machinery, hadn’t delivered on the work as promised.

Determined to resolve the issue without dampening the holiday spirit, Buddy and Chip turned to Nash’s Commercial Dispute Resolution (“CDR”) team for guidance.

The CDR team introduced them to Alternate Dispute Resolution (“ADR”), a way to solve disagreements without involving the courts. ADR, they learned, was like having a peaceful conversation over a cup of hot chocolate rather than a snowball fight.

Buddy and Chip quickly learned that ADR, much like their Christmas chocolates, came in all shapes and sizes.

The CDR team explained that a popular form of ADR is called mediation. This would involve Buddy, Chip and Elf agreeing to appoint an independent third party, the mediator. Across a full day, the mediator would facilitate discussions between the parties with a view to finding common ground, narrow points in dispute and giving every chance that Buddy, Chip and Elf could reach an agreement. Whilst the mediator would help guide the conversation, encourage understanding and compromise to reach a mutually agreeable solution, they aren’t responsible for making a decision. It would be up to Buddy, Chip and Elf to reach an agreement, or not.

Buddy and Chip then learned, that if they wanted to try a process that did make a decision for them, they could explore what is referred to as ‘adjudication’. If Buddy, Chip and Elf agreed, they could appoint an adjudicator with a particular expertise in the installation of toy-making machinery. The adjudicator would make a decision, based on the written submissions provided by Chip, Buddy and by Elf. Once a decision was made, the adjudicator would give an award to the ‘successful’ party – this would be binding and, if Chip and Buddy were successful, they could force Elf to comply with it.

Buddy and Chip then asked if they could approach Elf informally at first to see if an agreement could be reached without any further action. The CDR team advised that informal negotiation was itself a form of ADR, and there was no harm in Chip and Buddy reaching out to Elf to see if the matter could be resolved without any further steps.

These discussions would be held on what is referred to as a ‘without prejudice’ basis – which Buddy and Chip learned meant that the discussions were confidential between the parties and could not be disclosed to a court. This meant that Buddy, Chip and Elf could all make suggestions to each other without fear that these would be used against them. Buddy said that this probably meant that an agreement would be more likely.

The CDR team made clear to Buddy and Chip that ADR methods are generally quicker, more cost-effective, and less confrontational than going through the court system. This approach can not only save time and money but also helps preserve professional relationships, which was important to Buddy and Chip who worked with Elf all year round.

Equipped with this knowledge, Buddy and Chip felt prepared to approach their dispute using ADR, rather than via the courts.

ADR is an increasingly popular way of resolving disputes that courts expect parties to have considered before matters become litigious. If you’d like to find out how our Commercial Dispute Resolution team can help you, click here.