Alternative Dispute Resolution is a term that covers a variety of methods that try and resolve disputes without court action. They are intended to be quicker and cheaper.
Benefits of Alternative Dispute Resolution:
Often quicker and cheaper than litigation due to how busy the courts are;
It provides flexibility, choice and control. For example, the parties would seek to agree an Arbitrator or Mediator whereas they would have little to no control over the appointed Judge;
Matters are entirely confidential and decisions are not published;
Settlement can be reached by consent and this may mean the parties can maintain an ongoing business relationship, which is less likely if a dispute is litigated;
Settlement is reached in around 89% of matters that take the ADR route as of July 2018 according to the Centre for Effective Dispute Resolution (CEDR); and
If settlement is not reached, it may still achieve progress such as a narrowing of the issues making any litigation more straightforward.
Drawbacks of Alternative Dispute Resolution:
If settlement is not reached, ADR will serve to delay any progress with the resulting litigation and will add costs that would not have been incurred had proceedings been issued immediately. It is worth noting, however, that if one party agrees to ADR and another does not, there may be cost consequences for the refusing party even if they succeed in the litigation;
Parties are concerns that they reveal their litigation position to their opponent;
ADR is rarely suitable if the parties require injunctive or other interim relief and it mainly assists with helping to reach a final settlement;
If a dispute has been ongoing and limitation for issuing proceedings is approaching, ADR does not stop the clock and so it may be that litigation is still required; and
Parties have voiced concern that agreeing to ADR can be seen as them showing weakness and being overly willing to settle.
The Different Types of Alternative Dispute Resolution:
This is in no way intended to be a comprehensive list and the finer details of each type of ADR should be considered prior to making or agreeing any proposal to proceed.
Negotiation:
Parties should always try and negotiate prior to exploring any formal ADR or litigation and the court would expect it. Provided all negotiations are agreed as being without prejudice the parties can talk freely and explore possible settlement without incurring any or any significant cost. It is a very flexible form of ADR and can take place either by way of correspondence or in person if the parties prefer. Where the parties’ positions are some way apart, it may be that this is not successful.
Mediation:
This is a private and non-binding form of ADR and all discussions benefit from mediation privilege meaning that the parties can speak freely knowing that the other is unable to rely on their words in any litigation that follows. The parties have the choice and control of selecting a mediator who acts as a “steer” on negotiations. The mediator can only seek to advise and bring the parties together and cannot make orders, so mediation is mainly useful and successful when both parties are keen to reach a settlement agreement.
Adjudication:
Used in the construction industry for many years, this is similar to mediation, but with strict timescales and the decision of the adjudicator is binding. It normally arises when there is an adjudication clause in a contract, but the parties can agree to the process without such provision. The strict timescales mean that the process can seem rushed.
Arbitration:
This is very similar to litigation and Arbitrators often follow the rules of the courts where there are no specific rules for arbitration. Unlike court proceedings, they are private and confidential. The process is often quicker than litigation and so cheaper on lawyer’s fees, but the costs of the arbitration are paid jointly and severally by the parties and these fees are significantly higher than a Court’s. Arbitration normally arises when there is an arbitration clause in a lease or a contract.
Other Forms:
There are other forms of alternative dispute resolution that may be worth considering in specific circumstances including med-arb and the use of certain boards.
For more information on ADR and any dispute you may be having, commercial or private, call us on on 01253 858231 or e-mail info@mjvlaw.co.uk
by Jane Willacey
We were instructed at the start of May 2020 by Mrs K from Leicester who had been experiencing ongoing mould and damp within her property since 2018. We took her case on under a ’No Win No Fee’ agreement.
Our client moved into her property in the late winter of 2017, within just a few weeks she noticed mould appearing in both the bathroom and second bedroom to the rear of the property. Our client contacted the council via both phone and email but received no response.
By the winter of 2019 the mould was getting a lot worse and carpets and curtains were saturated, all attempts by our client to clean and repaint the walls were in vain.
The council made no response to our client’s complaints and there was no attempt to investigate the source of the disrepair.
Once we were instructed, we sent a detailed letter of claim to the council setting out that they were in breach of express and implied terms of tenancy and/or breach of their statutory and common law duties by not adhering to the clauses outlined in the tenancy regarding their responsibility for the maintenance and repairs of the structural integrity of the building and we instructed an expert surveyor.
Our surveyor reported that some of the main issues were but not limited to severely blocked gutters which were cracked in numerous places along the back of the property which allowed water to penetrate the rear wall.
The council’s solicitor acknowledged our letter of claim and many discussions they made a part 36 offer to settle out of court. The offer was a little lower than anticipated therefore we made a counteroffer of £3,550, repairs to be fully completed within 60 days and all costs recovered from the other side. The council agreed to settle.
Our client’s had up until the point of instruction lived in a state of disrepair for over 2 years and whilst getting their home returned to the state it should have been in was the priority the compensation that our client received for came a close second.
For more information on how compensation is generally calculated, read our article on this subject: https://www.mjvlaw.co.uk/legal-news/housing-disrepair-compensation/
by Jane Willacey
Spray foam insulation claims
Spray foam insulation is an expanding foam that is sprayed into location and is often used to insulate loft spaces and roofs, but can also be used in walls and other places.
Problems can arise with spray foam insulation because it is not particularly breathable and this can cause damp and mould. If it is not installed to a good standard and carefully, it can cause disrepair and problems for property owners because it is very difficult to remove.
Background
As a firm of solicitors, we are not experts in the products themselves and that is why we work with expert surveyors to assess potential claims. If you would like to know more about the products themselves then we direct you to the Royal Institute of Chartered Surveyors (‘RICS’) who have produced a comprehensive guide for consumers, which is found here https://www.rics.org/news-insights/rics-release-new-spray-foam-consumer-guide
Because of the problems spray foam insulation can cause, many mortgage lenders have taken the decision not to secure loans against any property that has spray foam insulation installed. This has caused concern among thousands of homeowners who have had spray foam insulation installed in good faith and to try and reduce their energy bills or decrease their carbon footprint.
Until recently, Her Majesty’s Government’s ‘Green Deal’ scheme of cheap loans for energy efficiency installations in homes financed spray foam insulation installations and so researchers at the House of Commons Library have published a note about it which you can read here: https://commonslibrary.parliament.uk/spray-foam-insulation-and-mortgages/
Anyone with spray foam insulation installed at their home or who is considering having it installed or buying a property with it, can read more information on how this may affect them here https://hoa.org.uk/advice/guides-for-homeowners/i-am-improving/spray-foam-roof-insulation/ as the Home Owners Alliance have produced some detailed advice and guidance on this and how the main lenders will approach the issue.
Whether and how badly your home is affected by issues arising from the spray foam insulation is often dictated by whether the installer has carried out an inspection of the roof to ensure that it is in good condition, whether they have applied the insulation every and in a professional manner and the type of insulation used (open cell or closed cell).
Not all properties that have spray foam insulation installed will be affected by disrepair, but it may be difficult for the owner of any property that has spray foam insulation installed to secure finance against it or to sell it to a buyer who needs a mortgage. We have been contacted by many people who find themselves in this position.
Disrepair
If you own a property that has had spray foam insulation installed in the last 5 years and you believe that it has caused or contributed to disrepair at your home, we may be able to assist you in bringing a claim.
The most common types of disrepair that spray foam insulation causes are problems with the roof and in the attic and damp and mould in the areas around where the spray foam insulation has been installed.
Proving that these issues are caused by the spray foam insulation is a matter for an expert surveyor who we would instruct to inspect your home if your spray foam insulation claim was accepted.
Defendant
Many of the companies who installed spray foam insulation are no longer in business and, if they are, they are unlikely to have the resources to satisfy a claim. It is common for properties to need a full roof replacement to remove the insulation and this can cost tens of thousands of pounds.
If you have paid for the spray foam insulation on a credit card or by way of a loan, you may be able to bring a claim against the lender. This includes spray foam insulation claims arising from the Green Deal scheme.
Even if you have only paid a small amount on a credit card or made a single loan payment before repaying it full, you may be able to pursue the bank rather than the installer.
What next?
If you have spray foam insulation installed in your home, please call us today on 01253 858231 to discuss whether we can assist you.
One of our team will take your instructions and if we accept your case it will be on a no win no fee basis.
