Settled! Ways to resolve disputes quickly and outside Court

1 April 2011

Issuing or defending potentially costly Court proceedings in order to resolve a dispute is not always commercially viable.  The good news is that going to Court is not the only way to settle a dispute.

As the old saying goes, “there is more than one way to skin a cat”, and with the introduction of new legislation governing the way disputes are handled in Victoria, Alternative Dispute Resolution ("ADR") is set to become more common.

ADR processes usually involve a trained and impartial professional who assists the parties in resolving the issues between them.  Some examples are:

1.     Negotiation:

Takes place directly between the people in dispute, usually with the assistance of their lawyers.  Negotiations can be lengthy or  simply involve a round table conference where the parties and their representatives endeavour to find a solution.

2.      Mediation:

A trained and impartial mediator helps the parties negotiate with each other face-to-face.  They cannot impose a decision on the parties.  They are there to facilitate discussion and to assist the parties to identify key issues and possible outcomes. 

3.       Arbitration:

Is the more formal of the ADR processes.  The parties present their case to an independent arbitrator.  It is similar to the Court process as each person presents their case for a decision, and the decision is binding on the parties.   It is less formal and speedier than the Court process, and usually more cost effective.

Advantages of ADR include:

1. It is less formal than the Court process.
2. It is usually less expensive than pursuing litigation through the Courts.
3. It is usually less time consuming than preparing for, and going to Court.
4. You retain control over the outcome, (with the exception of Arbitration).
5. Results are usually specific to each party's needs, and can include more flexible and 'commercial' solutions.
6. Disputes are settled by agreement rather than a decision being imposed on the parties (with the exception of Arbitration).
7. Even where ADR is unsuccessful it helps the parties identify key issues in dispute, which usually results in a resolution being reached sooner.
8. ADR processes are often less damaging to personal and professional relationships, as the processes are not as adversarial in nature.
9. ADR processes are usually confidential, meaning that neither the reason for a dispute or the basis on which it was resolved needs to be made public.  On the other hand, Court proceedings, especially hearings, are open to the public.

It is important to carefully consider both whether ADR is right for you, (given your specific needs and the subject of the dispute), and what form of ADR is best suited to your dispute before you take any steps. 

Please feel free to contact any of the following lawyers in our Litigation team on (03) 9510 0366 should you wish to discuss in further detail your dispute and whether ADR is suitable for you:

• Caroline Callegari – Lawyer - cfc@meerkinapel.com.au
• Hugh Maclaren – Partner – hm@meerkinapel.com.au
• Emanuel Tumino – Partner - et@meerkinapel.com.au
• James Pergl – Senior Associate - jp@meerkinapel.com.au
• Allana Burrone – Lawyer – ab@meerkinapel.com.au