ALTERNATIVE DISPUTE RESOLUTION
Civil litigation can be stressful and expensive. Alternative Dispute Resolution (“ADR”) is an option that should be considered if you want to settle the matter before it proceeds to trial. Although there are multiple types of ADR processes, this article will focus on mediation, magistrate’s court settlement conferences, and arbitration.
BEFORE YOU ENGAGE IN ADR
Before you participate in any form of ADR, it is important to determine what it is you want out of the ADR and what outcome you can live with. It is important to ask yourself questions such as would you be satisfied with the proceeding being discontinued with no order as to costs; would you require all or a portion of your legal costs to be paid; what amount would you be willing to pay to settle the matter?
PRIVATE MEDIATION
Private Mediation involves a qualified and skilled mediator who acts as an unbiased facilitator to settlement negotiations. The role of the mediator is to ensure the parties’ wants and needs are heard and will guide negotiations with the goal of reaching an agreement. The mediator can translate the terms of the agreement into a written document, which the courts can make into an enforceable consent order.
Pros:
- The mediator is devoted to the resolution of your matter.
- Mediation time is flexible, meaning the parties will have more time to negotiate and reach an agreement.
- Mediation can be scheduled at a date and time suitable to the parties.
- Can be done with or without a lawyer present.
- Costs of mediation can be shared between the parties.
Cons:
- Can be expensive, with mediators charging for their time, travel, accommodation, and other costs.
- If an agreement is not reached and the matter proceeds to trial, the unsuccessful party may be ordered to pay the full cost of the mediation.
MAGISTRATE’S COURT SETTLEMENT CONFERENCE
A magistrate’s court settlement conference is a conference between the parties which is held before the registrar of the magistrate’s court. The settlement conference usually consists of the plaintiff and defendant as well as their legal representatives and the registrar, who acts as a neutral facilitator to the discussions. The parties may reach an agreement and record that agreement in writing. If the parties fail to reach an agreement, then the matter may need to go to trial or be set down for another settlement conference.
Pros:
- Relatively low cost, with costs becoming ‘costs in the cause’.
- Can apply to attend via telephone if required.
Cons:
- Settlement conferences require your lawyer to be present, so you will incur legal fees for your lawyer’s attendance.
- Parties may not be willing to discuss the matter or negotiate, costing you time and money.
- Conferences will be scheduled depending on court availability, with parties having reduced control over the date and time of the conference.
ARBITRATION
Arbitration is used where the matter is a commercial dispute and is particularly common in the building and construction industry. Arbitration consists of a tribunal (between 1 to 3 arbitrators) who hear the arguments and evidence of each party and then make a binding and enforceable determination (referred to as an “award”).
Pros:
- Awards are enforceable and have a similar effect to a court judgement.
- Parties have control over the arbitration process and the process can be quick and flexible.
- The outcome of the arbitration will remain unpublished and will be confidential between the parties.
Cons:
- The costs of arbitration can be expensive and are similar to court litigation costs.
- The process is quite formal.
- You may require the assistance of a lawyer to prepare your submissions and attend arbitration, which incurs legal fees.
CONCLUSION
It is important to determine your negotiation position and the current circumstance of your legal matter before engaging in ADR.
ADR has the potential to be less costly and stressful than litigation, provided that the parties are willing to negotiate.
There are several other ADR processes that were not mentioned in this article, so it is important to speak with the team at Miller Sockhill Lawyers today on 07 5444 4750 to discuss which process would be best for you.
Read further on Neighbourhood Disputes