Are you filing for a dispute or responding to one? Have you considered using one of the many modes of dispute resolution available in Australia?
Facing disputes is an inevitable part of life and most often in doing business. But with the right dispute resolution strategy, you can resolve disputes quickly and efficiently without incurring high costs.
However, not all modes of dispute resolution can help solve your case. Hence, it is essential to understand the different types of dispute resolution to choose the best option for you.
With that, legal assistance by expert lawyers can be quite helpful to ensure the effectiveness of the dispute resolution process you will undergo. This is because the Australian law system is broad, complex and ever-changing, and navigating it can be challenging to understand without expert guidance.
If you need help settling a dispute, choose reputable law firms to help you with your case.
So, what is dispute resolution? It is the process of resolving disagreements between two or more parties. It involves identifying and addressing the issues in dispute and finding a way to reach an acceptable agreement with all parties.
There are several ways to resolve disputes, and the most appropriate one will depend on your case’s specific facts and circumstances.
Arbitration is a process where an independent third party, called an arbitrator, hears both sides of the dispute and makes a binding decision. Attending arbitration is mandatory only if both parties agree, typically detailed in an existing contract.
Arbitration is similar to a court procedure but a less formal process. It can be faster and cheaper than going to trial. It is also confidential, which means that the details of the case will not be made public.
Arbitration is suitable for disputes where both parties want to maintain a good relationship, such as in business agreements or family law matters.
Mediation is a process where an independent third party, called a mediator, helps both sides of the dispute to reach an agreement. The mediator does not make a decision and cannot force the parties to agree.
Because mediation is flexible, informal and can be adapted to best suit the individuals involved, the mediator helps facilitate an agreement between both parties on how they would like mediation to progress.
The role of the mediator is to aid communication, encourage mutual understanding, assist the parties in recognising their needs and wants and use creative problem-solving approaches to help them reach an agreement on their own.
Unlike arbitration or going to court, the result of a mediation is not legally binding unless all parties agree to it. If the parties involved cannot agree, the dispute remains unresolved.
The conclusion of mediation is never legally enforceable unless the parties follow additional procedures to formalise the agreement. This implies that both sides must act in good faith and be resolution-focused. As a result, all parties are more likely to be pleased with the outcome because they have greater control over it.
This means that if mediation has failed, the mediator provides an alternative: litigation or other more formal options.
Conciliation is a method of conflict resolution in which a third party, known as a conciliator, actively assists individuals involved in a dispute to reach an agreement they can all accept. Conciliation aims to help the parties understand each other’s points of view and reach an acceptable agreement. Although the conciliator may suggest how the dispute could be resolved, they cannot force the parties to agree.
Conciliation is similar to mediation, but the conciliator has more power to direct the discussions and suggest how the dispute could be resolved.
The conciliator actively works with parties to:
- Identify what the dispute is about
- Develop options
- Consider alternatives
- Help them reach an agreement
For a conciliation to succeed, all participants must be comfortable with the resolution. This is in contrast to arbitration, where the arbitrator will evaluate the evidence and render a binding and enforceable decision.
4. Case Appraisal
Case appraisal is a dispute resolution that is less formal than arbitration or going to court but more formal than mediation. It is an opportunity for both sides of the dispute to explain their position to an independent expert who will then provide a non-binding opinion on the case’s merits.
The appraiser does not decide but provides an objective analysis of the situation. This can help the parties to understand their legal position and make informed decisions about how to proceed.
Case appraisal is helpful for disputes where the parties want an expert opinion on the merits of their case but do not want to go through the formal arbitration or litigation process. It can also be used as a way to encourage settlement negotiations. These disputes,
- Are not complex
- Have minimal issues in dispute
- Have no witnesses
- Do not have lengthy evidence
The case appraiser in the National Sports Tribunal is a specialist in alternative dispute resolution from an NST Member’s list.
Case appraisal is distinct from mediation and conciliation. During mediation and conciliation, the primary responsibility of the NST Member is to facilitate communication between parties so they can resolve their dispute amicably.
When dealing with disputes between family members or business partners, you must first consider the dispute and what you want to achieve from the resolution process. This will help you decide which method of dispute resolution is suitable for you.
On the other hand, if you are responding to commercial litigation or family law proceedings, you will be required to use one of the formal dispute resolution processes. With that, seeking the help of a lawyer will help make better decisions.