Dispute Resolution

If you are involved in a legal dispute, attempting to resolve your matter through an alternative dispute resolution process can be a viable and lower-cost option to court proceedings. In fact, these days, parties to many types of disputes must first attempt some form of alternative dispute resolution before they can start court proceedings.

Negotiation

Negotiation is generally the first step in attempting to resolve a dispute. Negotiation involves parties (or their representatives) communicating directly either by speaking with each other or in writing, to try to reach agreement. If an agreement is reached the parties can formalise their negotiations through terms of settlement.

Mediation

Mediation involves an impartial person (a mediator) assisting and encouraging parties to negotiate a resolution to their problem. It can be used for a range of matters including family law and commercial disputes. Mediation is most effective when the parties are willing to negotiate in good faith and make genuine attempts to resolve their matter. If mediation does not fully resolve a problem, it can still be useful in identifying and narrowing down the issues in dispute.

Facilitation

Facilitation is like mediation but more commonly used for groups that are in conflict, for example local planning matters or body corporate disputes. Facilitation can also be used as a forum for differing points of view to be discussed and considered in reaching an agreement. Facilitation is led by an impartial person called a facilitator.

Conciliation

Conciliation is a process in which the parties to a dispute try to reach an agreement with the help and advice of an impartial person, referred to as a conciliator. The conciliator usually has some experience of the matter being disputed and can advise parties of their respective rights and obligations. Equal opportunity disputes are often resolved through conciliation.

Arbitration

Arbitration involves a professional person with expertise in a particular area (the arbitrator) who makes a decision after each party presents their argument and evidence. The parties are generally bound by the arbitrator’s decision. Arbitration is sometimes used when the methods of dispute resolution have proven unsuccessful and is commonly used for industrial relations or contractual disputes.

VCAT proceedings

The Victorian Civil and Administrative Tribunal (VCAT) resolves legal disputes and cases in Victoria, is less formal than a court and hears and decide cases according to the law. VCAT’s main purpose is to provide an accessible, efficient and low-cost tribunal which focuses on the handling and mediation of disputes.

VCAT can hear a range of matters, including disputes about goods and services, residential tenancies, building and construction, equal opportunity, owners’ corporations, and planning.

Some matters, such as building disputes, will require parties to settle their dispute through conciliation with a Tribunal member. If the parties fail to reach an agreement, they will then be referred to a hearing. You do not need legal representation at VCAT, however if you wish to have a lawyer represent you, you need to notify the other party beforehand.

VCAT orders are treated the same as court orders.

What is litigation?

Litigation generally refers to the process used by parties to a dispute to bring the matter to court for determination. These days, litigation is often seen as a ‘last resort’, after one or more of the dispute resolution processes explained above fail to achieve an outcome. Litigation may also be necessary in urgent matters.

Court proceedings are commenced by an aggrieved party (the plaintiff) filing a summons or application in the relevant court, identifying the party against whom a remedy is sought (the defendant). The claim usually includes a statement of facts summarising the case, identifies the alleged wrongdoing or area of law breached and seeks a remedy (decision / award) from the court.

Courts manage a diverse range of complex civil and commercial matters such as disputes arising throughout the course of business relations, commercial dealings, contract law and misleading or deceptive conduct under the Australian Consumer Law.

We are experienced negotiators with strong advocacy skills and knowledge across a range of legal matters and court processes. We understand the impact that a legal dispute can have on your life, your business and your wellbeing, and will always look to the most effective way to resolve your case in terms of cost and outcome.

If you need assistance, contact one of our lawyers at [email protected] or call 03 9338 8511 for expert legal advice.