It is understandable that when you are involved in a dispute, you want to see it through to a conclusion. But let’s be honest: litigation costs money and not everyone has the funds to litigate their matter in court.

We have already written about some of the alternative dispute resolution methods you can use if you are involved in a dispute. The good news is a majority of matters never reach a hearing, and parties more often than not resolve their differences through negotiated settlement. If you have the opportunity to negotiate with the other party, or if an offer is made to you, you should seriously consider it, and obtain legal advice on your prospects.

We have set out below some of the considerations you need to consider when negotiating settlement or contemplating taking a matter to a hearing:

Costs

  • What is your case really worth? You need to be realistic when taking a matter to trial. There is no point thinking you are going to get a million dollars if your matter, in reality, is worth half of that.
  • Additionally, you need guidance on what your chances are at trial. This is where the expertise of your counsel will really come in handy. Counsel is an expert advocate, and their advice should be sought (along with your lawyer) as to what your genuine prospects of success are. They will consider previous verdicts in similar matters and provide advice on the strengths and weaknesses of your case. This will then help guide you as you navigate possible settlement.
  • What monetary resources does your opponent have? The last thing you want is to take the matter to a hearing and achieve a favourable result only to find out the defendant cannot pay any judgment or your costs. That is a hollow victory indeed! Accepting a settlement offer from the other side can provide certainty for you.
  • Before you accept a settlement payment, you should take advice from an accountant or a taxation specialist as to how any settlement payment will affect you from a taxation perspective.

Time

  • How long will it take to have a trial? Unfortunately, litigation is not a fast process, and you need to allow a good 9-12 months (at a minimum) before you are likely to receive a hearing date. The time out of your regular business to attend to matters for the dispute is likely to be significant.

Not to Mention…

  • If the matter proceeds to a hearing, is there likely to be unfavourable publicity for you or your company? Anything that goes to trial is open to the public and in the age of social media, not all publicity is good publicity.
  • You may also be concerned that business information or trade secrets will need to be disclosed as part of your evidence
  • Will you feel comfortable giving evidence? It is a daunting prospect for most people to step into the witness box and give evidence. The vast majority of people I have been involved with during hearings will feel anxious and intimidated when asked to give, and be cross-examined on their evidence.
  • Consider what alternative resolutions you can reach. I.e., a negotiated settlement does not just have to include money.

Key Takeaways

There are plenty of things you need to think about when you are involved in a dispute. A negotiated outcome and settlement is usually the best option. It provides certainty for you and your business and doesn’t involve the same cost and time pressure of traditional litigation. Questions? Get in touch with our disputes team on 1300 544 755.

Emma George

Next Steps

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