Taking a matter to court is not the only way to resolve a dispute. Indeed for reasons outlined in our webpage on Going to Court, litigation will often be an option of last resort.
There are many other options available to try to resolve a dispute. Here are some of the alternatives:
This provides the opportunity for a neutral third party to stand between the opposing parties, and to facilitate settlement discussions. To be effective, the mediator needs to be a very senior lawyer, and often we will recommend engaging a retired judge or silk for the role. Mediations are conducted on a confidential basis, so that anything which is said by either party cannot be repeated later if the matter does not resolve.
A good mediator can confidentially give each party compelling feedback on both the strengths and weaknesses of their case, as well as identifying potential paths to resolution which have not previously been identified. Solutions may include undertakings as to future conduct – they do not simply have to be about payments of money. The mediator will help the parties draw up a Heads of Agreement, which will form a binding agreement.
A successful mediation may take a whole day, and require careful and patient discussion. Sometimes the parties will be required to prepare a position paper before the mediation. Usually only the lawyers speak in joint sessions in a mediation, but there are lots of opportunities throughout the day for the parties to speak to their lawyers privately, and if they want, to make a statement to the other party.
Informal Settlement Conferences
These sessions are similar to mediations, and are confidential discussions. However, instead of having a neutral third party, the lawyers assist their clients in trying to negotiate an agreement. Again, there needs to be a spirit of co-operation for such a meeting to have any prospect of success. Often the discussion will start by identifying common interests in resolving the matter and then working through possible outcomes that provide both parties a way forward.
This is like an informal court hearing, where the parties voluntarily agree to submit to the ruling of a third party (but not a judge). Because it is an informal process, the legal costs involved are far less than going to court. Some commercial contracts and partnership agreements provide for an arbitration process as part of the dispute resolution clause.
Apart from the three processes described above, there is also the honed skills of a good litigation lawyer, who should have well developed skills in representing your position to the other party. The best lawyers will usually establish a professional rapport with their opposing lawyer, and find opportunities to discuss the overall direction of a matter and explore possible options for resolution. Well crafted letters which stick to the issues and avoid legal bluster or alienating language will usually be more effective in the long run.
The Disputes Team at Atkinson Vinden Lawyers has a general philosophy of exploring potential settlement options as early as is reasonably practicable in a matter. This is because more often than not, a sensible commercial settlement will save the client a substantial amount of legal fees, and allow them to focus on their business and future opportunities, rather than scrapping about the past. If you are seeking a fresh approach to a dispute you are currently embroiled in, contact Rod Berry, Managing Partner, Tom Howard, Senior Associate, or Caitilin Watson, Senior Associate to discuss your options on (02) 9411 4466.