Do I have to make a claim?

Until recently, if you had a legal problem, you would normally have gone to a court or tribunal in what is often called 'litigation'. While this is still a common way of sorting out such problems, individuals often find that going to court is expensive and can be stressful.

There are now a number of other ways of sorting out complaints and legal problems, including things like arbitration, mediation and ombudsmen schemes. These are often called 'alternative dispute resolution' (ADR) schemes.

Court rules require you to think about whether alternative dispute resolution is a better way to reach an agreement before going to court. If you refuse to consider this, you may not get your costs back, or the court may order you to pay the other party's costs, even if you win the case.

Why use an alternative dispute resolution scheme?

ADR schemes are not meant to replace the courts in all cases. But they can have advantages over going to court. These advantages include:

• Being more flexible
• Solving your problem faster
• Being less stressful
• Costing you less money

If you have a problem with a person or organisation you deal with regularly (a neighbour, for example), ADR can mean a better, longer-lasting solution to your problem.

You can also use some ADR schemes as well as going to court or a tribunal. For example, mediation can help everyone focus on the issues that are causing the problem, making it easier for you to reach an agreement or for a judge to make a decision.

Remember that either side in a disagreement can suggest using an ADR scheme to solve the problem.

Court rules also now say that you must think about whether some form of ADR is a better way to reach an agreement before you go to court. If you refuse to try ADR before going to court without having a good reason, you may not get your court costs back, even if you win your case.

How do I decide whether to use ADR?

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
• How willing the other side is to try and solve the problem

The result you want

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

• An order that something be done or stopped
• Compensation
• 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
• 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're 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're unlikely to get that 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, you will have a better chance of getting this from the Health Service Ombudsman.

How you want to go about solving 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
• How much time you can spend on it

For example, you might feel it is important to have a hearing or 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 hearing but would rather have the matter dealt with on paper only. Ombudsman schemes normally use this kind of 'documents-only' process.

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're 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're unhappy with the result.

Also, in some cases, you can't use two methods at the same time. For example, you can't 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're 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.

Mediation and conciliation

These involve an independent mediator (someone who doesn't take sides and who won't gain or lose anything by the outcome). They will help you and the other person or company find a solution to the problem. You and your opponent, not the mediator, decide what will happen and the terms of any agreement you make. But the process is voluntary so you can't force the other person or organisation to take part.

Mediation and conciliation themselves are not binding unless there is a signed mediated agreement which is effectively a contract and valid between the two parties. A court may also be approached to turn a mediation agreement into a consent order which is then enforceable through the courts. What is said in a mediation session is confidential, so it can't be used in court later. Only the resulting agreement can be enforced by the court. In practice, people tend to keep to a mediated agreement because they have prepared its terms themselves.

You can use mediation and conciliation for a range of different problems. We have included contact details for most of the organisations providing mediation and arbitration services at the end of this section.

Mediation for relationship and family problems

Any problems to do with a divorce or separation can go to mediation. These include:

• Arrangements for children, including where they will live, who they will live with, and how often they will see each parent
• Who will have property and belongings
• How your ex-partner or children will be supported
• How and when you will contact your ex-partner

Mediation can also deal with other types of problems within families, including:

• Problems between young people and their parents
• Disagreements over who will care for elderly parents and how they will be cared for

Mediation for problems with neighbours

If you have a disagreement with a neighbour, for example, about noise or harassment, you can try to sort it out using community mediation. Contact Mediation UK for details of your nearest community mediation service. Community mediation is usually free to local residents. The issues community mediation can deal with include:

• Noise
• Problems with local children
• Problems over shared land or facilities
• Parking
• Pets
• Property boundaries

Mediation for problems at work

You can try to solve many employment disagreements through conciliation or negotiation, including problems to do with:

• Unfair dismissal
• Equal pay
• Redundancy payments
• Terms and conditions of your job
• Flexible working requests
• Discrimination because of pregnancy, race, sex or a disability

The Advisory Conciliation and Arbitration Service (Acas) and the Labour Relations Agency (LRA) in Northern Ireland offer free conciliation/mediation for many types of employment problems. But remember that there will be strict time limits if you want to take your case to an employment tribunal. These time limits will apply whether or not you try mediation, conciliation or negotiation first. It is important to get independent legal advice about your situation before deciding what to do.

Mediation for problems with discrimination if you are disabled

If you have a disability and you feel you have been discriminated against by a retailer or service provider, you may be able to use the Disability Conciliation Service. Contact the Disability Rights Commission in England and Wales or the Equality Commission in Northern Ireland for advice or referral to the scheme.

If you feel you have been treated less favourably at work because of a disability, your sex or your race, you can consider using conciliation or mediation provided by Acas or LRA.

Harassment and discrimination claims at work or between neighbours can also be sorted out using mediation. The best way to find a service is to contact Mediation UK.

Mediation for problems with your child's education

You may be able to use a mediation service to help sort out a problem about:

• How or why your child was excluded from school
• Special educational needs that you feel your child has

All local education authorities are required to provide 'independent disagreement resolution services' for disputes about a school's provision for a child's special educational needs; in most cases, the type of disagreement resolution used is mediation.

Mediation for other problems

You may be able to use mediation for a range of other problems, including:

• Problems with goods and services
• Business disagreements
• Medical accidents
• Personal injury
• Community care
• Housing

Arbitration

This is sometimes described as a private version of going to court. It involves an independent arbitrator who is impartial (someone who doesn't take sides, and who won't gain or lose anything by the outcome). The arbitrator will hear both sides of the disagreement and make a decision that will solve the problem.

Arbitration can only be used if you and the person or company you have a dispute with both agree that you want to go to arbitration. The process is confidential and so is any amount of compensation that the arbitrator awards. Sometimes the arbitrator makes their decision based on papers that each person gives them to support their case. At other times they hold a hearing where both sides can present their cases. However, this hearing is less formal than a court hearing.

The result of arbitration is binding, so you can't take your case to court after the arbitrator has made a decision, unless the arbitrator has made obvious legal mistakes or behaved improperly.

Arbitration can be used for a range of problems, for instance, disputes about goods and services.

Trade associations for different companies often have arbitration schemes. Some of them run their own schemes, but others are run by an independent organisation called the Chartered Institute of Arbitrators (CIArb).

One example is the Association of British Travel Agents (ABTA), which can arbitrate on, for example, a disagreement about holidays.

If you have a complaint with a business, and they are a member of a trade association, ask the trade association whether they have an arbitration scheme to deal with your problem. You can also contact the Chartered Institute of Arbitrators to see which organisations they run arbitration schemes for.

Expert determination

In expert determination, an independent person looks at the case and gives a decision. The person making the decision is usually an expert in the subject of the disagreement. They are chosen jointly by both sides, who agree from the start to be bound by the expert's decision.

Expert determination can be best for deciding technical areas of a complex disagreement.

Early neutral evaluation

With this option an independent person looks at the claims made by each side and gives their opinion either on:

• What they think the result should be
• A particular point of law

Their opinion is non-binding, so either side can use it to decide what steps they might take next. The opinion can also be the basis for an agreement between both sides.

Early neutral evaluation can help work out where the real problem lies, and make both sides think more clearly about results by giving an independent view of the arguments. The evaluator is often chosen because of their expertise in the subject matter of the disagreement. They may also be a lawyer with litigation experience.

Grievance and complaints procedure

These are usually the first stage of resolution for many disagreements you have with companies or government departments. In some cases, you can't use another method of sorting out a problem (such as an ombudsman) if you have not gone through the complaints procedure.

The best complaints procedures are usually those where complaints are handled at a local level, often informally. This can be best for everyone. However, many complaints procedures do not have time limits, so sorting out a problem can take a long time. Also, complaints procedures are not independent, because they are drawn up and handled by the organisation you have your problem with.

If you are frustrated by a complaints procedure and feel you have done everything possible to sort out the problem by using it, find out what the next stage is. This is often referral of the dispute to an ombudsman which we discuss below.

Negotiation

This involves dealing directly with the person or organisation you have a problem with. You can do this yourself, or you can get a representative (such as an adviser or solicitor) to do it for you.

Negotiation is an extremely important first step. It starts with you approaching the other side with details of your complaint and suggestions for how it can be sorted out. The other side does not need to agree to take part before you (or your representative) approach them. If you find yourself needing to take a dispute to court, it is imperative that you show that you have tried to resolve the problem by negotiating before resorting to a court claim. Whilst not compulsory, the court will frown on litigants who have ignored the option of negotiation

The process is not binding, although both sides can agree to make a negotiated agreement into a legally-binding contract or order. This would mean that you could then take the other side to court if they didn't do what they had agreed to. In some types of dispute, such as medical negligence and housing disrepair, the courts say you must try to negotiate with the other party before applying to court.

Most disagreements can be solved through negotiation. A common example is settlement discussions between solicitors. More than nine out of ten legal claims are settled without needing a trial.

Negotiation is different from conciliation and mediation in that the person negotiating for you:

• Acts for you, and represents your interests
• Is not independent
• May also advise you about the best course of action

Ombudsmen

Ombudsmen are independent 'referees' who look at complaints about public and private organisations. They are often a last resort when complaints can't be sorted out through an organisation's own complaints procedure. Ombudsman services:

• Are free to use
• Won't normally consider your complaint unless you have first used the complaints procedure of the organisation you have a problem with
• Don't take sides
• Make decisions that are not binding on you, so you are free to go to court or use another dispute resolution process if you are not happy with their decision. (Except for the Pensions Ombudsman, whose decisions are binding on both you and the company.)

Ombudsmen who belong to the British and Irish Ombudsman Association (BIOA) are independent from the organisations they investigate.

In most cases, the ombudsmen dealing with public organisations (such as local authorities or government departments) can only review how a decision was made and say whether:

• There was 'maladministration' in the way it was made
• It resulted in an injustice

They don't look at whether or not the decision itself was right. Maladministration can include:

• An organisation or department not following its own policies or procedures
• Rudeness
• Taking too long to do something;
• Not doing something they should have
• Treating you less fairly than other people
• Giving you wrong or misleading information

The private-sector ombudsmen (who look at complaints about banks and insurance companies, for example) can generally look at whether a decision was fair and reasonable based on industry standards of good practice. They can also award you compensation if they agree with your complaint.

Ombudsman for problems with goods and services

There are ombudsmen schemes for a range of different consumer complaints, including:

• Estate agents
• Financial services (banks, investments and insurance, for example)
• Pensions
• Telephone services

If a company you have a problem with is a member of an ombudsman scheme, it should make this clear in a brochure, for example, or on its letterhead. If you are not sure, ask the company or contact the British and Irish Ombudsman Association (BIOA).

Ombudsman for problems with solicitors (England and Wales only)

If you have a complaint about a solicitor, you can complain to the Legal Complaints Service (LCS). If you are unhappy with how the LCS has handled your complaint, you can then go to the Legal Services Ombudsman. In Northern Ireland complaints are made through the Law Society of Northern Ireland.

Ombudsman for problems with medical treatment

If you have a complaint about any treatment you've received from the NHS, you can take your case to the Health Service Ombudsman and the Northern Ireland Ombudsman. However, the ombudsman will only look at your case if you have already been through the NHS complaints procedure and you are not happy with the result.

The Health Service Ombudsman and Northern Ireland Ombudsman can consider various complaints, including those about:

• Poor-quality care or treatment
• Poor-quality service
• Not giving you a service that you should have had
• A delay in your care or treatment
• Rudeness
• The way your complaint was dealt with by a hospital or health authority

Ombudsman for problems with housing

The Housing Ombudsman Service and the Northern Ireland Ombudsman deal with complaints from people who have a 'registered social landlord'. These are normally housing associations, but may also be landlords who manage homes that used to be run by local councils. Some private landlords are also members of the Housing Ombudsman scheme in England and Wales. In England and Wales the Local Government Ombudsman (LGO) deals with complaints from tenants in local authority housing.

Ombudsman for problems with local authorities (councils)

If you have a complaint about a local authority (council) you should contact the Local Government Ombudsman or the Northern Ireland Ombudsman.

They will look at complaints about most services provided by your local authority including:

• Council housing transfers, allocations and repairs
• Problems with your child's education (for example, being given a place at a school, being excluded, or being assessed for special educational needs)
• Social services
• Housing Benefit
• Council tax
• Planning

Ombudsman for problems with government departments

If you have a complaint about a government department, you can take it to the Parliamentary Ombudsman and/or the Northern Ireland Ombudsman. If your complaint is about the National Assembly for Wales and some public organisations concerned with Welsh issues, you can take it to the Public Services Ombudsman for Wales. The Parliamentary Ombudsman or Northern Ireland Ombudsman will look at a range of complaints, including those about:

• The Benefits Agency or Jobcentre Plus (in England and Wales) or Jobcentre in Northern Ireland
• Access to official information
• The courts (but not about judges or their decisions)

You can find out which government departments and public bodies are covered at the ombudsman website

If you want to take your complaint to the Parliamentary Ombudsman, you must first send it to a member of parliament (MP). They will pass it on to the ombudsman. In Wales, you can complain directly to the Public Services Ombudsman for Wales and, in Northern Ireland, you can complain directly to the Northern Ireland Ombudsman.

Ombudsman for problems with the Child Support Agency

If you have a complaint about the Child Support Agency, you can take it to the Independent Case Examiner.

Complaints about gas, electricity, water and telephone companies

There are regulators that oversee the way gas, electricity, water and telephone companies behave. The three main regulators in England and Wales are:

• Ofgem, for gas and electricity companies
• Ofwat, for water companies
• Ofcom for telephone and Internet service providers

In Northern Ireland the regulator for gas, electricity and water is NIAUR (the Northern Ireland Authority for Utility Regulation) and, for telephone and internet service providers, the regulator is Ofcom as per the rest of the UK.

However, regulators do not normally deal with individual consumer complaints. You will need to follow a certain procedure in each case and can find links to our pages on the steps you will need to take:

• For a gas or electricity company, read our article on Complaints about gas and electricity
• For a water company, read our article on Complaints about water
• For a telephone or Internet service provider, read our article on Telephone and broadband

How much does alternative dispute resolution cost?

When working out how much it will cost to deal with a problem, you need to take into account:

• Fees or charges for the alternative dispute resolution service (if it is not free)
• Your own expenses, including things like travel and photocopying
• The cost of legal help and advice
• The risk of you not getting what you want

For example, you need to know if you will be responsible for paying the other side's legal fees and other expenses if you lose. And you need to know if you can expect to get your costs and expenses paid if you win.

The general principle that applies in civil courts in England and Wales and Northern Ireland is that the 'loser' pays the other side's costs as well as their own, except in the family courts, where each side normally pays their own costs. In alternative dispute resolution, the general principle is that each side pays their own costs.

You should also be aware that if you unreasonably refuse to consider a form of ADR before or during civil litigation, then you may not get your legal costs back, even if you win.

Mediation costs can vary, depending on the type of mediation. For example:

• Community mediation is usually free to local residents
• Family mediation services often charge an hourly rate. Some have a scale of fees, so what you pay depends on how much money you have. You may be able to get help with the costs of family mediation through the Community Legal Service
• Commercial mediation providers make a charge depending on the complexity and value of the claim

If you are eligible for public funding (formerly legal aid) or Legal Aid in Northern Ireland, the Community Legal Service fund or the Northern Ireland Legal Service Commission may pay for the cost of your mediation, or another form of alternative dispute resolution. Sometimes, the organisation you are complaining about might pay all the costs because they are the financially stronger side.

Most consumer arbitration schemes run by the Chartered Institute of Arbitrators needs a fee to be paid, but some are free. And if you win your case, you will get back any fee you have paid.

Ombudsman schemes tend to be the least expensive to use, as they are free to the person complaining. Community mediation doesn't cost much either. It usually involves face-to-face meetings, so you may have to pay travel and other expenses, but you may be able to get these back as part of a mediated agreement if both sides agree to this.

You may have to pay for travel expenses, childcare costs, and time off work if you have to go to a hearing. Photocopying evidence can be expensive, so don't forget this cost if you are using a process such as arbitration where you have to provide many documents.

Can I get help with the costs?

You may be able to get help with the costs of using an ADR scheme if you are eligible for public funding. This will depend on whether you can afford to pay and if you meet other conditions. If you meet these conditions, you may get help with:

• The costs of preparing your case for mediation, early neutral evaluation or arbitration
• The cost of legal advice before and during an ADR
• The fee for mediation, early neutral evaluation or arbitration

Dispute resolution services

Providers of arbitration and mediation

• Academy of Experts
• ADR Group
• Age UK (For people with problems with sheltered and retirement housing, run by Age UK).
• Acas
• LRA
• Centre for Effective Dispute Resolution
• The Dispute Resolution Service at the Chartered Institute for Arbitrators (DIS-CIArb)
• Mediation Northern Ireland
• The Family Mediation Helpline
• The Deposit Protection Service
• The Dispute Service (Associated with the Tenancy Deposit Scheme).
• Family Law Bar Association
• Family Mediators Association
• In Place of Strife
• The Independent Dispute Resolution Service (IDRS) (Adjudication and arbitration schemes for a range of trade associations).
• The Law Society (England & Wales)
• The Law Society (Northern Ireland)
• National Family Mediation
• National Mediation Helpline
• Resolution (Family Mediation)
• Stitt Feld Handy Group
• UK College of Family Mediators

Ombudsmen

Services that cover England and Wales unless stated otherwise:

• British and Irish Ombudsman Association (For information about public and private sector ombudsman schemes in the UK and Ireland, with contact details).
• The Property Ombudsman (For complaints about estate agents who are members of the scheme).
• The Financial Ombudsman Service (For complaints about financial services, including banks, building societies, investments and insurance).
• Parliamentary and Health Service Ombudsman (For complaints about services unfair or improper actions or poor service by UK government departments, their agencies and the NHS in England).
• Housing Ombudsman Service (For complaints about housing provided by all registered social landlords, and some private landlords).
• The Independent Case Examiner (For complaints about the Child Support Agency).
• The Information Commissioner's Office (For complaints about data protection and freedom of information).
• Legal Ombudsman (For complaints about the way the Law Society, Bar Council and other professional bodies deal with complaints about legal practitioners).
• Local Government Ombudsman (England) (For complaints about services provided by local authorities in England).
• Pensions Ombudsman (For complaints about the way pensions schemes are run).
• Public Service Ombudsman for Wales (For complaints about local authorities, registered social landlords, the national health services and the National Assembly for Wales and the bodies it funds).

Complaints about utilities providers

• Citizens Advice (For energy complaints).
• Consumer Council for Northern Ireland
• The Consumer Council for Water
• Communications and Internet Services Adjudication Scheme (CISAS)
• Communications Ombudsman (For complaints about some telecommunication services).

Further help

• GOV.UK website (Provides free information direct to the public on a range of common legal problems.

If you qualify for legal aid, get free advice from a specialist legal adviser about benefits and tax credits, debt, education, employment or housing. Also find a high quality local legal adviser or solicitor).

• ADRnow (For more information about all kinds of alternative dispute resolution processes, and links to mediation providers and ombudsman schemes throughout the UK).
• Advicenow (Information on rights and legal issues).
• Adviceuk (Umbrella group for free, independent advice centres).
• Citizens Advice (Your local Citizens Advice Bureau is listed in the phone book, or you can search for a local CAB on their website).
• DIAL Network (A network of advice centres for people with disabilities).
• Equality and Human Rights Commission (England)
• Equality Commission (Northern Ireland
• Law Centres Federation
• Law Society of Northern Ireland
• Resolution (A group of solicitors specialising in family problems who use a non-confrontational approach).
• Shelter (For problems with housing).
• Youth Access (Information, advice and counselling for young people).