When a professional falls short of the standards expected of their role, the consequences can be serious and costly. If you’ve suffered a financial loss due to a professional’s negligence, one of the first decisions to make is how to best resolve your claim.
Should you issue court proceedings? Or is an alternative approach such as medication or arbitration a better option?
In this article, we explore the benefits and drawbacks of litigation and alternative dispute resolution (ADR) in professional negligence claims, helping you understand which route may be best suited to your situation.
Understanding Professional Negligence
Professional negligence occurs when a professional fails to perform their responsibilities to the standard reasonably expected of someone in their position. The result is usually financial loss, reputational harm, or damage.
These claims often require a detailed understanding of both the legal framework and the professional standards that apply in the specific industry. That complexity can affect the choice of resolution method.
What is ADR?
Alternative Dispute Resolution (ADR) refers to ways of resolving disputes without going to court. In professional negligence claims, the most common forms of ADR are mediation and arbitration.
Mediation is a voluntary and confidential process where a neutral mediator facilitates discussion between the parties to help them reach a mutually acceptable agreement. It is typically non-binding unless an agreement is reached and recorded.
Arbitration, on the other hand, is a more formal process where an independent arbitrator hears both sides of the dispute and then makes a decision. This decision is usually binding, but the process itself is private and often more flexible than litigation.
Why consider ADR?
There are several advantages to choosing ADR. First, it is usually more cost-effective than going to court. Legal fees, expert reports, and court costs can quicky escalate in litigation, whereas mediation or arbitration often resolve disputes faster and more affordably.
Second, ADR is typically much quicker. Court proceedings can take time to conclude, ADR offers a more flexible time scale, and many disputes can be resolved in a matter of weeks once both parties agree to engage.
Confidentiality is another big benefit. Court hearings are generally public, and judgments are published, in contract, mediation and arbitration are private processes, which can be particularly important in sensitive or reputationally significant matters.
ADR also gives more control over the outcome. Rather than having a decision imposed by a judge, mediation in particular allows both sides to shape the terms of any agreement.
When Court Proceedings might be more appropriate
Despite the advantages of ADR, there are circumstances where litigation is the better or only viable option.
If the professional refuses to accept any liability or is unwilling to engage in settlement discussion, court proceedings may be the only way to move the matter forward.
Court proceedings also allow for disclosure processes. If key documents or evidence are being withheld, the court has powers to compel disclosure. This can be critical.
Is ADR always required before Litigation?
Increasingly, courts expect parties to explore ADR before issuing proceedings. Parties can be penalised if they unreasonably refuse to consider ADR, even if they go on to win the case.
For this reason, it’s often advisable to attempt ADR early in the process. Doing so not only demonstrates willingness to resolve the matter sensibly but can also reduce risk and avoid unnecessary expense.
We can help
At WRS, we prioritise negotiation, mediation, and cost-efficient resolution before trial. Protecting your interests and time to get to the right result for you.
If you believe you’ve suffered loss due to the negligence of a professional, speak to our expert team today for confidential advice on your next steps