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No matter who you are in a dispute with – a neighbor, friend, business associate or a major corporation – the option of using alternative dispute resolution instead of a draining legal battle is well worth considering. John Harris Solicitors can advise you on which course you should take to avoid going to court.
What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) is the term used to describe methods, in addition to court proceedings, which you can use to help solve your legal problem.
The ADR methods provide a means of resolving new disputes early, as well as resolving lengthy disputes generally more quickly.
These dispute resolution methods can be built into agreements before disputed arise so if a problem develops, it can be sorted out quickly and at a low cost.
Most importantly, with ADR the solution is up to you.
What are the ADR Methods?
The methods you can choose to help solve your legal problem include:
Mediation
An independent and neutral person helps you and the other parties work out the issues in dispute, and come up with an acceptable solution. It is up to you to make and agreement. Control of the outcome stays with you. The mediator is not there to advise or make decisions regarding the issues. The mediator is a facilitator, not a decision maker.
Many courts and tribunals have the power to order you to try mediation before taking a matter to trial. Otherwise, it is voluntary. This means you cannot force the other party to mediate. They have to agree. If you and the other party choose to mediate and an agreement is not reached, you can still go to court.
Conciliation
Conciliation is a process in which the parties to a dispute, with the assistance of a neutral person, identify the disputed issues. The conciliator will help you and the other parties to look at the strengths and weaknesses of your arguments. Usually, the conciliator is an expert on the subject of the dispute and as a result, the conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative one.
As with mediation, some courts and tribunals may order you to try conciliation before going to trial. You cannot force another party to conciliate. If you and the other party choose to conciliate and an agreement is not reached, you can still go to court.
Collaborative Law
Collaborative law involves both parties and their legal representatives signing an agreement to reach a settlement without resorting to litigation. The focus of all participants is, therefore entirely on reaching a negotiated settlement.
Arbitration
Using this process, the parties to a dispute choose an independent arbitrator to act as a judge. The person appointed as the arbitrator makes a decision which is binding on you and the other parties.
Why use ADR?
Cost savings
Research evaluating mediation has found the cost of disputes which proceed to hearing (in court) are notably much higher than those successfully mediated.
Time saving
Settlement is usually quicker than if you go to court.
Flexibility
You decide on the time and place of the ADR session and how formal it will be.
Privacy
You can agree that discussion during the session is confidential. This may be subject to some legal limitations.
Greater range of solutions
You can expand the range of possible solutions to your dispute.
Future cooperative relations
An early amicable solution may bring future cooperative relations with the other parties.
When is ADR used?
ADR is a flexible way of sorting out disputes. It has already been used for everything from neighbor disputed over a fence to divorce settlements to multi-million dollar commercial contract disputes.
Courts generally expect parties to participate in some form of ADR to try to resolve their legal disputes.
ADR can be used at any time in the dispute, from the early stages before it goes to court right up until the dispute is ready for trial.
Adjudication
Under the Building and Construction Industry Payments Act 2004, a process of rapid adjudication has been introduced to resolve progress payment disputes. The Queensland Law Society is registered as an Authorised Nominating Authority (QLS ANA) under the Act and can put you and your solicitor in contact with skilled Adjudicators who can make quick (within ten business days), legally enforceable decisions.
In the respondent fails to pay by the due date stated in an Adjudicator’s decision, the QLS ANA can issue an Adjudication Certificate that, in essence, confirms that decision. This can be filed in an appropriate court for enforcement and without the need for a hearing.
Contact dmc@qls.com.au or the Queensland Law Society on 3842 5914 for further details on this process and for our list of Building and Construction Lawyers
Where to now?
The best way to get the answers you need is to speak to a solicitor, so call us on +61 7 3839 1500.
Organise an initial consultation
A face-to-face consultation gives you the opportunity to discuss your legal issues with professionals who deal with and resolve these issues on a daily basis. We provide a free half an hour initial consultation. It gives you a chance to ask any questions you may have and for a member of our team to gain background and provide an insight into the options available to you.
For more information please call us on +61 7 3839 1500 or send us an e-mail at info@jhsolicitors.com.au. We are here to help.
Please call us to find out how we can help you.