If you are having a dispute with anyone that affects the successful running of your business, it is important to know what actions you can take without going to court. Disputes are difficult enough without the added stress, time and expense of litigation. Knowing some options you have that are more informal, collaborative and efficient will help you make smart decisions about what you need to do to resolve a dispute.
What is alternative dispute resolution?
Alternative Dispute Resolution (ADR) includes all of the options you can take in a legal matter before going to court in order to try and resolve your issue with the other party. Types of ADR include negotiation, mediation, conciliation and arbitration. Each of these options ranges from the more informal, being negotiation and mediation, to the more formal and court-like, which is arbitration. Negotiation and mediation tend to be more facilitative and provide the parties with more autonomy. Conciliation is helpful when the parties do not have legal representation and arbitration is useful if your dispute is quite complex and discussions would work better in a more formal environment.
Engaging in ADR is always voluntary and involves both parties agreeing to the outcome. The process is flexible and is generally decided on by the parties, however, it does still need to be fair. It is always a confidential process, whereas, in court the outcome and process are in the public domain.
How do I choose which type?
Some things to consider in choosing the type of ADR you wish to participate in include the cost, speed, privacy and how much control you wish to have over the process and the outcome. If the dispute is with an employee or another business you wish to continue having a relationship with, you might want to consider what your future needs are and what you are looking for. Do you wish to preserve the relationship? Is money the only consideration or are you looking for vindication or an apology from the other party?
You are able to try different types of ADR throughout a dispute; before, after and during litigation. The earlier you attempt to engage in a form of ADR the better, as once a matter becomes more formal and legalised, things can get defensive and accusatory, which is not beneficial, particularly when you want to continue the relationship if the dispute is resolved.
How do you start alternative dispute resolution?
You might find that your contract of engagement with the other party has a provision for settling disputes by ADR before any court action is taken. You are both then bound by this and there can be penalties put into the contract for a party who tries to go straight to court. You can also decide to start ADR simply by having a discussion with the other party by contacting a service that provides some of the options mentioned previously. If you have commenced litigation without using ADR and there is no requirement in your contract to use it then the court might direct you to attempt it even after proceedings have started.
If you are having a dispute with another party, it is best to seek legal advice on the best options for your individual circumstances. Get in touch with LegalVision’s dispute resolution lawyers on 1300 544 755 for any dispute or litigation enquiries, or fill out the form on this page.
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