How to sort out your legal problem before or instead of going to court

This guide is about the ways in which you can use dispute resolution to sort out a legal problem before or instead of going to court. Courts are not usually the right place to sort out problems caused by a communication difficulty or a misunderstanding. Talking to each other to find a solution that you can both live with can sometimes make it possible for you to go on having some kind of relationship in the future. This can be helpful if your dispute is with a neighbour or your landlord, your ex or your child’s school.
Women shaking hands
Alternative dispute resolution (ADR)

Sometimes, going to court is likely to be your best or only option. For example, if you’re about to lose your children, your home or your job or be deported you may need an urgent solution; one that only a court can provide. If you are in one of these situations, get some legal advice quickly.

‘Alternative Dispute Resolution' (ADR) is the name for a range of options for resolving legal problems, often without going through the court process. You may also hear it called 'Appropriate Dispute Resolution'.

Ian's story

I tripped over a trailing wire at work and fell heavily, badly bruising my knee and breaking my right wrist. I had to have surgery on my wrist and later some physiotherapy. My knee was painful and swollen for some time. I got medical evidence to support my claim and legal advice about what my claim was worth. My employers dragged their feet and didn’t seem willing to accept responsibility or negotiate any kind of deal. So in the end I had to start court proceedings even though I wanted to avoid going to court if possible. When I heard about mediation I agreed to go. Fortunately my employers did too. I was worried it would be difficult to be in the same room with them but I didn’t have to. They were in a different room from me. It took about two hours to sort out. In the end I accepted an increased offer from them. It wasn’t quite as much as I’d hoped for but it wasn’t far off what I’d been told my claim was worth. I was pleased I’d agreed to mediation; for me it was quicker and less stressful than going to court.

In the next sections we outline the various types of ADR and what problems they can help with.

Legal language

We try to explain any legal language as we go along, but there is also a What does it mean? section at the end.

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Disclaimer

The information in this guide applies to England and Wales and is for general purposes only. The law may be different if you live in Scotland or Northern Ireland.

The law is complicated. We have simplified things in the guide. Please don't rely on this guide as a complete statement of the law or as a substitute for getting legal advice about what to do in the specific circumstances of your case. 

The quotes and cases we refer to are not always real but show a typical situation. We hope they help you think about how to deal with your own situation.

Acknowledgements

This guide draws on earlier work by Margaret Doyle and Val Reid. Advicenow would like to thank Margaret Doyle for her feedback on this update of the guide.

March 2018
Negotiating and complaining

Negotiation

You may be able to solve your problem informally by talking directly to the person or organisation that seems to have caused the difficulty. If you explain the problem and make reasonable suggestions about how it can be sorted out, you may be able to agree a way forward, for example, with your neighbour or your builder. If you don’t feel confident enough to do this on your own, try contacting your local CAB, Law Centre or other independent advice centre for help. You can use our Help Directory to find an adviser.

Making a complaint

Most organisations and businesses (for example, councils, banks, estate agents, solicitors, police, gas and electricity suppliers, schools, universities, Royal Mail, and the NHS) have a process for handling complaints.

Making a complaint gives them a chance to try and sort things out with you. And in some cases you have to use the complaints procedure before taking the complaint further or going to court.

Help with complaining

  • Check out Resolver – a website which offers a free tool to help people make complaints. It explains your rights, helps you write your email and sets up an online case file where you can upload everything to do with your complaint.
  • local advice agency may be able to help you find out the time limits for your complaint and help you draft a complaint letter .
  • Public Law Project have a helpful leaflet about making an effective complaint to a public body. 

Top tips for complaining

  • Before you decide what to do, be clear in your own mind what you think the problem is and how you would like things put right.
  • If you stay calm and polite, you will get your points across much more clearly and effectively. The person on the other end of the phone or who gets your letter or email almost certainly wants to help you if they can. But they are only human. If you shout or swear at them or are rude or offensive, they may not put as much effort into helping you as they would do otherwise.
  • If you complain by phone, make sure you keep a note of the date and time when you call and the name of the person you speak to.
  • If you write, put ‘Complaint’ clearly at the top of your letter or email.  Keep your letter or email short and simple. Explain what you’re not happy with and what you want done to resolve the problem.

 For more advice on complaining see Seven steps to solving an everyday legal problem.

  

Taking it further
Be aware!

For some types of legal problems, for example, family disputes and some disputes over special educational needs, you have to consider using ADR to try to resolve the dispute, before going to court or tribunal.

However, using other types of ADR, for example, arbitration and any scheme resulting in legally binding settlements, mean that you can not go to court.

If trying to negotiate or complaining doesn’t seem to be getting anywhere you may want to consider ADR as the next step.

ADR is short for ‘alternative dispute resolution’ which you may also hear called ‘appropriate dispute resolution’. It refers to the different ways of resolving a dispute, often without going through the process offered by the courts. It includes methods such as ombuds schemes, mediation, early neutral evaluation, conciliation, and arbitration. These terms are explained in What does it mean?

The courts strongly encourage people to try ADR. Many people end up wishing they had tried one of these other approaches before going to court.

ADR is a good choice if:

  • you are comfortable with the idea of sitting down face to face or on the telephone with the other side to talk about the problem (mediation); or
  • you are happy to send evidence for someone independent to make a decision (adjudication, arbitration, ombuds schemes).

The court process may be best for you if:

  • You are the ‘weaker side’, for example in a dispute with a big organisation and you are not confident that you could hold your own in a mediation process.
  • You are at risk from violence or intimidation from the other side.
  • The other side refuses to negotiate, or you think that they won’t stick to any agreement that you make.
  • You want to have your day in court, and for a judge to make a public decision about who is right and who is wrong.

Sometimes, ADR can lead to a solution that satisfies both sides and has a longer lasting impact on your life than anything a court is likely to achieve, for example, improved communication between you and a member of your family or a neighbour. But this is not always the case. For more information about this see Why use ADR? Pros and cons.

Legal advice on using ADR

Where to get information on time limits

Browse or search for your problem area on Advicenow. You should find information on time limits within the information in our top picks.

Ideally you should get legal advice to help you work out if ADR is the best route for you to take. An adviser can:

  • Advise you on any time limits for taking legal action in case the ADR doesn’t work – you don’t want to miss the deadline.
  • Advise you on whether the potential outcomes are safe and fair.
  • Make sure you understand the implications of any settlement, for example, if it means that you can’t take the same dispute to court at a later date.

You can search on the Law Society’s website for a solicitor near you. Choose an adviser who is an expert in the type of law your problem is about.

You can check to see if you are entitled to legal aid to help with the costs of legal advice. You can search for a legal aid solicitor here.

If you don’t get legal aid and can’t afford legal advice there are some organisations who may be able to help.

If you have a family problem you may find our Survival guide to using family mediation after a break up helpful. This guide is for you if you have recently split up or are struggling to agree with your ex-partner (or another family member) about what’s going to happen to your home, money, children or any other issues. It doesn’t matter if you were married, in a civil partnership, living together, or never did any of these things. The guide explains what family mediation is and how it could help you.

In the next section we set out some problems that you may be able to resolve using ADR before or instead of going to court.

Problems that ADR may be able to resolve

Problems at work

Whether you are an employer or an employee, you can contact ACAS (Advisory, Conciliation and Arbitration Service) for free, confidential and impartial advice about problems such as unfair dismissal, equal pay, redundancy, the terms and conditions of your job, bullying, harassment, the breakdown of your relationship with a work colleague or any other kind of disagreement or dispute in the workplace.

ACAS also offers mediation, conciliation and arbitration services. Find out more about ACAS.

Problems with equality and human rights

Anyone who feels they have been treated unfairly in their employment, education or use of services (such as hotels, shops, banks, cinemas, bars, transport and travel, electricians, dentists and services provided by councils) because of age, disability, marriage or civil partnership, race, religion or belief, sex, sexual orientation or gender reassignment may be able to get advice from the Equality Advisory & Support Service about how to resolve their problem informally. 

Problems with neighbours

Your problem may involve noisy neighbours, pets, parking problems, boundary disputes, rubbish, hedges that are too high, trees that block out your light or anti-social behaviour. Find out more about resolving neighbour disputes.

One way of trying to sort out this kind of problem is by using community mediation. You can search for organisations that offer community mediation here:

Alternatively ask your local council for details of your nearest community mediation service. Charges vary but sometimes the service is free.

If your neighbour is doing something that is damaging to health or a nuisance then you can ask your council to help solve your problem. If you are not satisfied with their response, then you may be able to complain to the Local Government and Social Care Ombudsman in England or the Public Services Ombudsman for Wales.

The Local Government and Social Care Ombudsman has information about complaints about high hedges.

Problems with tenancy deposits

Tenancy deposits paid after April 6th 2007 have to be paid into one of three, government-authorised deposit protection schemes when the money is first paid to the landlord. These are:

The landlord chooses which service to use. The schemes try to resolve disputes about deposits quickly and without the need for court action. The aim is to make sure that tenants who have paid a deposit to a landlord or letting agent actually get it back at the end of the tenancy if they are entitled to it. If you agree to use one of these tenancy deposit schemes to resolve your dispute, you cannot appeal the decision of the adjudicator (unless you challenge it through the courts) and you cannot take your claim to court later.

Check the relevant website for details, information about their charges (if any) and how to contact them.

If your landlord has not paid your deposit into one of these schemes, then you may have to go to court to resolve your problem.

View more information about tenancy deposit protection.

Problems with health care

The Parliamentary and Health Service Ombudsman investigates complaints about the National Health Service (NHS) in England including NHS hospitals, GPs, dentists, opticians, pharmacists and other providers (including private health care) where the service is paid for by the NHS.

Complaints about NHS provision in Wales are dealt with by the Public Services Ombudsman for Wales.

Problems with housing

You may have a problem to do with your landlord, perhaps because of how they are dealing with your application for a transfer or with charges they are making. If you have complained to your landlord but are not satisfied with their response then you may be able to complain to an Ombudsman.

In England, the Housing Ombudsman Service looks at complaints about registered social landlords, for example housing associations, and other landlords, managers, and agents. 

The Public Services Ombudsman for Wales deals with complaints about any social landlord in Wales including housing associations. 

You can also view our top information picks on private renting, including how to solve a housing problem without going to court.

Problems with planning

Local authorities have their own complaint and appeal procedures that you can use if you are unhappy about a planning decision. If you are not satisfied with their response, then you can make a complaint to the Local Government and Social Care Ombudsman  for local authorities in England or the Public Services Ombudsman for Wales .

The Local Government and Social Care Ombudsman has information about what you can do if you have concerns about the council approving a neighbour’s planning application, or if you have concerns about how the council dealt with your own planning application. 

Problems with education and training

If your child has special educational needs and you and your child’s school or the local council disagree about how to meet those needs, mediation is available to help you find a solution.

In fact, for disputes that can be appealed to the SEND tribunal you have to consider mediation before you can lodge an appeal.

For more information see:

In England, if you have a problem relating to school admissions or exclusions, school transport, home tuition or some aspects of special educational needs, the Local Government and Social Care Ombudsman may be able to help you. See Complaint fact sheets - education.

If you have a problem with an academy school or a free school you can complain to the Education and Skills Funding Agency once you have been through the school’s complaints process.

In Wales, if you want to complain about Estyn, the Higher Education Funding Council for Wales or about school admissions or exclusions then the Public Services Ombudsman for Wales may be able to help you.

If you have a problem with a further education college or an apprenticeship, see Complain about a further education college or apprenticeship.

The Office of the Independent Adjudicator deals with individual complaints against universities and colleges in England and Wales as well as FE colleges providing higher education and providers of School-Centred Initial Teacher Training. 

Problems with benefits

If you want to challenge a Personal Independence Payment (PIP) decision you can use our tool to help you write a really good mandatory reconsideration letter

If you think a decision about your benefits is wrong, your decision letter should tell you how you can appeal. For many benefits the first stage in this process is mandatory reconsideration.

There is a different process for tax credits  and housing benefit.

If you are going to appeal you should do it as quickly as you can because there are time limits.

Our guide on tax credit overpayments includes information on how to appeal.

If you want to complain about how a decision was made, for example, it took too long or you were treated unfairly in comparison with the way others were treated, then in the first place you can complain to whichever government agency made the decision. If you are not satisfied with their response, you may be able to take your complaint further.

The Independent Case Examiner deals with complaints about government agencies such as the Child Maintenance Service, the Pension Service and Jobcentre Plus (including most work provider services).

The Adjudicator’s Office deals with complaints about agencies such as HM Revenue and Customs. So if, for example, you are unhappy with how HM Revenue and Customs dealt with your complaint about their handling of your claim for child benefit or tax credits, you can complain to The Adjudicator’s Office

Problems with goods and services

For information about consumer rights and how to resolve a dispute when you buy goods or services, see Consumer rights.

There are some specific schemes to help you resolve disputes about goods and services. Many of them are ombuds schemes. Ombudsmen will not normally consider a complaint until the organisation or business concerned has had a reasonable chance to sort it out first. You cannot go to court at the same time as complaining to an ombudsman. All ombudsman schemes in the UK provide a free service to consumers. Complaints must be made within a reasonable time and often there is a fixed time limit within which to complain.

The Financial Ombudsman Service helps with complaints about services provided by organisations such as banks, insurers and mortgage companies including most problems involving financial products and services such as:

  • bank accounts
  • credit, debit and store cards
  • payment protection insurance (PPI)
  • other insurance, like motor, travel and household
  • loans, including payday loans
  • other credit, like car finance 
  • mortgages
  • repayment problems and debt collection
  • money transfers and online payments
  • financial advice, savings and investments
  • pensions

The Legal Ombudsman helps to resolve complaints about solicitors, barristers, licensed conveyancers, cost lawyers, legal executives, notaries, patent attorneys, trade mark attorneys, law firms and companies providing legal services such as claims management companies. 

The Pensions Ombudsman helps to resolve complaints about a pension scheme provided by your employer or a pension you have set up yourself. They can also help if you have a complaint about a decision made by the Pension Protection Fund or the Financial Assistance Scheme. 

The Property Ombudsman helps to resolve disputes between members of the public and property agents. 

Ombudsman Services: Property helps to resolve complaints from consumers about chartered surveyors, surveyors, estate agents, residential managing agents, letting agents, valuers and other property professionals. 

Ombudsman Services: Communications helps to resolve consumer complaints about companies which provide communications services, including telephone, mobile and internet services, to the public. 

The Energy Ombudsman helps to resolve complaints gas or electricity companies. 

The Removals Industry Ombudsman Scheme resolves complaints about removal or storage companies that are members of the National Guild of Removers and Storers.

The Furniture Ombudsman resolves complaints about furniture and home improvements. 

The following are not ombudsman schemes but also offer free dispute resolution for some consumer problems:

The Communications and Internet Services Adjudication Scheme can help settle disputes related to communication services including broadband, mobiles, on demand services, pay TV and premium rate services. 

The Postal Redress Service offers a free ADR scheme for disputes between postal services and their customers.

The Association of British Travel Agents (ABTA) deals with travel problems. 

Problems with the police

Individual police forces deal with complaints involving police officers and staff within their force. If you are not satisfied with the outcome of your complaint you may be able to appeal to the Independent Police Complaints Commission (IPCC). Serious cases are referred to the IPCC in any event.

The IPCC oversees the police complaints system in England and Wales and is also responsible for dealing with serious complaints about staff at the National Crime Agency, Her Majesty’s Revenue and Customs (HMRC) and Home Office immigration and border staff. 

Costs of ADR

You will often hear it said that ADR is cheaper than going to court. And it can be, particularly if you are able to sort your problem out fairly quickly. But if it takes a longer the costs can mount up and if the ADR doesn’t sort things out and you end up going to court then you will have to pay both sets of costs.

Free ADR

Some ADR schemes are free to use, for example, ACAS, some community mediation schemes, ombuds and some consumer dispute resolution schemes. Use the information on the different problem areas above to check.

Fees

Some ADR is offered at a fixed fee, for example, if you want negotiate compensation the fixed fee will be based on the amount you are claiming. And some is charged for hourly or for each session. It’s a good idea to compare what local mediators are charging.

Other costs

Don’t forget that there may be other costs to factor in on top of the fees, for example, the costs of legal advice about the ADR, the cost of travel or room hire.

Legal aid

For some types of legal problems the costs of getting legal advice for mediation, and mediation costs, can be covered by legal aid. Check if you might be entitled to legal aid.

Finding an ADR provider

Not all mediators are covered in the directories mentioned above so it might be a good idea to search online and ask locally for recommendations.

What does it mean?

Adjudication – involves an independent person considering both sides of a disagreement and making a decision. This is usually done on paper. Both sides send in written details of their argument, with copies of any letters, reports or other evidence. The adjudicator then makes a decision based on this information, and on what is generally considered to be good practice in the business concerned. The adjudicator is usually an expert in the subject matter in dispute.

ADR - This stands for ‘alternative dispute resolution’ or ‘appropriate dispute resolution’. It is used to describe mediation, ombudsmen, adjudication and other ways to resolve disputes that are an alternative to going to court or tribunal.

Alternative dispute resolution – a range of options for resolving disputes, often without going through the process offered by the courts.

Appropriate dispute resolution -  the term ‘appropriate’ rather than ‘alternative’ dispute resolution is used to put the emphasis on using the most appropriate way of resolving a dispute. What’s appropriate depends on a lot of things – your circumstances, the type of dispute, the urgency of the problem, the cost etc.

Arbitration – is similar to adjudication except that it is a more formal process and requires you to accept the arbitrator’s decision. In arbitration an independent third party considers both sides in a dispute, and makes a decision that resolves the dispute. The arbitrator is impartial; this means he or she does not take sides. In most cases the arbitrator’s decision is legally binding on both sides, so it is not possible to go to court if you are unhappy with the decision.

Conciliation - in conciliation, as in mediation, an independent person (the conciliator) tries to help the people in dispute to resolve their problem. The conciliator should be impartial and should not take sides. The parties in dispute are responsible for deciding how to resolve the dispute, not the conciliator. In some conciliation, the conciliator gives an opinion about what is a reasonable resolution.

Early neutral evaluation - In early neutral evaluation (ENE) an independent third party considers the claims made by each side and gives an opinion or evaluation. The opinion can be about the likely outcome of the case, or about a particular point of law. The third party can either be an expert in the subject of the dispute, or an expert in law (such as a barrister or a judge). The same opinion is given to both sides in the dispute. The opinion is not legally binding.

Mediation – a way of helping you and your opponent try to find your own solution to the problem. This may take place face to face, in different rooms, or over the telephone. A mediator helps both sides to try to reach an agreement. The people with the dispute, not the mediator, decide whether they can resolve things, and what the outcome should be.

Negotiation - this is a form of dispute resolution – probably the most common one. You can negotiate directly with someone you are in dispute with, or you can have someone negotiate for you, such as an adviser or solicitor

Ombuds – Another name for ombudsmen.

Ombudsmen - investigate and resolve complaints about organisations and government bodies.

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