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23 Alternatives to court

Download Alternatives to court (PDF File, 346kb)

1. Introduction

2. What alternatives are there to court?

3. Do I need a lawyer to use alternative dispute resolution?

4. How do I decide whether to use an alternative dispute resolution scheme?

How you choose to solve your problem depends on:

  • the result you want;
  • what you can expect to achieve;
  • how you want to go about solving your problem; and
  • how willing the other side is to try and solve the problem.

The result you want

You can get different things from going to court than from ADR. By going to court, you might get:

  • an order that something be done or stopped;
  • compensation; or
  • a judgement from the court about who is right and who is wrong.

By using an ADR, you might get:

  • a change in the way a person or organisation behaves;
  • a promise that a person or company won't do something;
  • something you own repaired;
  • something you own replaced;
  • an apology;
  • an explanation for what happened to you;
  • a mistake corrected; or
  • compensation (for example, for an injury).

What you can expect to achieve

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 will probably need to take legal action, because you are unlikely to get compensation 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, then you will have a better chance of getting this from the Health Service Ombudsman.

How you want to solve your problem

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:

  • what it will take to get your problem sorted out;
  • how much it will cost;
  • how it will affect your life, including your family and your work; and
  • how much time you can spend on it.

For example, you might feel it is important to have a meeting where you can state your case in person. Mediation can usually offer this. Or you might feel that you don’t want to go to a meeting but would rather have the matter dealt with on paper only (through letters and other written information). Ombudsman schemes normally use this kind of ‘documents-only’ process. On the other hand, you may feel you need a more formal hearing where someone independent decides the rights and wrongs of your case. A court, a tribunal or an arbitrator can offer this

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.

Other things to think about

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.

5. How do alternative dispute resolution schemes work?

6. Mediation and conciliation

7. Arbitration

8. Grievance and complaints procedure

9. Litigation

10. Negotiation

11. Ombudsmen

12. How much does alternative dispute resolution cost?

13. Dispute resolution services

14. Further help

15. About this leaflet

This leaflet is published by the Gurkha Free Legal Advice (LSC). It was written in association with the Advice Services Alliance.

Leaflet Version: November 2007

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