Disputes quite often arise when we aren’t expecting them and it’s always a good idea to know what options are available to you, and while many head straight for court, there are much smarter ways to resolve disputes. Parties to a legal dispute have a number of dispute resolution options to resolve those disputes including mediation, arbitration and litigation.
Mediation is a process where the mediator assists the identification and resolution of the issues in dispute between the parties. The mediator is independent and controls the process of the dispute resolution but the parties control the topics to be discussed and decide the outcomes reached which can be legally formalised if the parties wish.
The most obvious benefit is that the parties keep 100 percent control of the topics and issues (legal and non-legal) to be discussed and the outcome reached. Where agreement is not reached in respect to all issues it is open to the parties to then review where to go to from there. Either the parties may wish to agree to arbitrate only those topics that have not been agreed, rather than throw away totally the agreement they have achieved and agreed and litigate. So what is arbitration?
Arbitration is a process where the matters in dispute are referred to a private arbitrator to determine the outcome to the dispute and to make any awards necessary to bring an end to the dispute. The issues in dispute are determined according to the relevant law with natural justice and procedural fairness. The award, once registered, has the same binding and enforceable effect as an order made by a court. It is also appealable but only if there has been an error of law or fact and not just because a party doesn’t like the award.
This dispute resolution process is flexible and can resolve matters in just a matter of weeks and avoids the delays and costs of litigation. It flows neatly on from a mediation that does not settle all issues.
Litigation is an alternate process to arbitration where the judge decides the final outcome based on the law and evidence put before them. The causes of action and remedies available are as set out in legislation or in accordance with precedent cases previously decided with discretion but totally outside the control of the parties. The orders made are enforceable and only appealable on an error of law or fact. It is generally accepted that litigation should be the option of last resort being by far the most costly, personally damaging and time consuming of the processes.
The role of courts and judges is to interpret and make law. Only where there is a legal issue is in dispute is there a need of litigation. All other matters can be resolved by mediation or arbitration.
Are you currently facing a dispute, or interested in more information about any of the options above? Contact SHAW Mediation Australia to discuss how we can be of assistance in the future.
Let’s talk or let’s decide!