Dispute Resolution:

Litigation is a very expensive process. It is often the case that those who may consider litigation as a way to resolve a dispute with another party may initially or ultimately find themselves in financial hardship as a result of the dispute. Most of those who may need the assistance of the law are not financially in a position to engage in protracted litigation, especially if the other side is a large corporate entity with vast funds available to defend itself in Court. This is true of matters that are premised on commercial litigation disputes as well as civil litigation disputes.

Navado aims to provide legal advice and assist in dispute resolution in the most economically efficient and timely manner as possible. Of course in some circumstances all avenues of negotiating a dispute outside of the Court system may fail and litigation will therefore be the only other avenue through which litigants can secure or protect their rights. Be that as it may, the Dispute Resolution team at Navado is experienced with the various forms of Alternative Dispute Resolution mechanisms available to help bring a matter to final settlement. These include the following:

Negotiation is perhaps the lease formal of the alternative dispute resolution processes. It involves communicating with the other party on a without prejudice basis. Issues are put on the table and grievances attended to. This process aims to resolve the matter in a quick and efficient way. Some disputes may involve contracts or agreements where a clause makes negotiation a necessary precursor to any other proceedings being filed. The contract or agreement should therefore be investigated and legal advice provided by an alternative dispute resolution solicitor before any other proceedings are commenced. Failing to do so may result in a breach of contract and the other side may have the right to sue accordingly. At Navado, where appropriate and possible, attempts are always made to resolve the matter through negotiation as a matter of course, unless of course there is so much acrimony between the disputing parties that negotiation is not practical or possible.

Conciliation is also an informal process where parties to a dispute agree to attend a place and discuss the problem issues with a view to reaching some form of resolution. Conciliation is common in employment disputes and usually precedes arbitration (see below), but there are other areas of law where conciliation may be pursued as a preliminary attempt to resolve a matter. Even where a dispute is not wholly resolved, sometimes conciliation may refine the issues in contention for further alternative dispute resolution processes. A conciliation solicitor can assist in the preparation of documents and advice on the legal implications and effect of factual matters and submissions which may be made by a disputant.

Mediation is a process where a neutral third party presides over a forum where the disputing parties meet to discuss the particulars of their respective claims and counter-claims. As with conciliation, the process is informal but certain procedural customs are observed. A mediation solicitor will be able to provide legal advice on the approach of a party in presenting its case in the mediation. Some matters may require mediation before any rights to litigate before a Court can be exercised. This can arise out of a contractual provision or it may be imposed by some Court of law practice direction.

Arbitration is a process which is ordinarily mandated by some prior agreement, such as a contract or deed, where the parties to a dispute agree to take their issues to a third party and abide by the third party’s determination. There may be allowances made for an appeal, or the arbitration by the third party may be final. This must be determined from the provision establishing the arbitration itself. The general principles of contract interpretation will become useful here where an alternative dispute resolution lawyer turns his attention to process issues. An arbitration solicitor will be able to assist in the case management of the arbitration process and ensure that all relevant issues are ventilated and dealt with appropriately.

Deeds of Settlement are usually essential to bring a matter to a full and final close. Drafting a Deed of Settlement is a delicate and sensitive matter which requires diligent attention to various clauses and sections that ensure:

1. The matter has come to an end and parties cannot harass each other in relation to it any further.
2. Liabilities are discharged.
3. Appropriate warranties and indemnities are included to protect the innocent.
4. Reputations are protected.
5. Damage is minimised.

Ordinarily, Deeds of Settlement should become binding on parties only after their provisions have been accepted and agreed upon by all those embroiled in the dispute, and only after the Deed of Settlement has been executed (signed and witnessed). This process can itself take a little time, but it is important that the final document is right before it becomes live.

For these reasons, a dispute resolution solicitor who has commercial litigation experience may be in a position to assist in the drafting of a complex deed of release. Likewise, a dispute resolution lawyer who has civil litigation experience will also be able to provide the guidance necessary in the production of a deed of release. The arbitration lawyer or conciliation lawyer or mediation lawyer will be abreast of these issues, as they may arise in any given case.

If you are involved in a matter which you believe may require alternative dispute resolution, you may wish to contact our firm by telephone on (02) 9233 4048 or email at info@navado.com.au and make an appointment to see one of our commercial litigation solicitors. 

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.