There are various mechanisms available for parties to resolve disputes. The most common ones include dispute resolution and litigation. Most disputes are settled before reaching a formal court hearing, usually through a settlement between the parties. Although, many disputes are often prepared for an eventual court hearing, there is usually a simultaneous effort to reach settlement.
This article provides a general overview of how a dispute might be handled. It is important to note that disputes are matter specific and the process may differ depending on the subject area. There is no one size fits all process and formula. Dispute resolution and litigation requires strategic planning and case management, with the help of professionals such as lawyers and barristers.
Initial Advice
Seeking expert litigation advice is an essential preliminary measure to safeguard your business and personal interests. In a dispute you will be either asserting your rights (as the plaintiff) or defending an allegation made against you (as the defendant). In the case of a counterclaim, you may be doing both.
At the outset, your lawyer will talk to you about the issues at hand. Typically, an initial meeting is setup to discuss your matter in depth and get to the heart of the issues. This provides clients with a clear understanding of what options are available.
Brief to Counsel
Once your lawyer has a complete understanding of your matter, a barrister's opinion is often sought. This requires a brief to be compiled with all relevant information clearly presented. This allows the barrister to define the legal issues clearly, so that the legal basis of your claim can be established.
A second opinion is invaluable. A barrister has a deep understanding of the law and can explicitly advise further on the merits of the case and what issues you may encounter. An experienced barrister may also give you an indication on the likely outcome of the case, although there are no guarantees in litigation.
Letter of Demand
It is common for the plaintiff to initially send a detailed letter outlining the accusations and desired solutions (typically involving monetary compensation). However, other obligations, such as undertakings, may also be requested.
It is important to seek advice before responding and/or agreeing to any settlement terms or conditions as they can have lasting impacts.
Notice or a Complaint
In other instances, a party might receive a notice or complaint. If you have received any type of complaint or notice you should seek advice immediately. Often there is limited time for a reply to be sought and increased liabilities at stake.
Negotiating an Agreement
It is common for lawyers to correspond on behalf of the parties during negotiation. To do this, advice is provided to the parties as to the risks and benefits of proceeding with the case. Based on this information and after balancing the cost to each party, a settlement might be reached quickly.
If an early agreement has been reached between parties, it is highly recommended that a settlement deed be entered into. It is important to have any subsequent agreements properly drafted for compliance and reduction of risks. Poor legal drafting can lead to further disputes or difficulties for the parties. It is essential to have experience lawyers for this process, as it impacts your ability to enforce or comply with the settlement deed.
Resolving conflicts via Mediation
Mediation is a form of alternative dispute resolution. It is a common practice in most legal proceedings any can be used multiple times prior to a court proceeding. It is a crucial tool to assist parties in reaching an agreement without the need for the matter to proceed to litigation. In many disputes, such as franchising or retail leasing disputes, it is a mandatory requirement before commencing legal proceedings.
Mediation has numerous advantages as it involves the parties' lawyers thoroughly reviewing the available evidence. Additionally, the presence of an experienced mediator, along with the parties being together in a professional and neutral setting, often results in successful resolutions. Mediation is also cost effective as compared to litigation and often results in a faster resolution.
Conducting mediations requires skill and expertise and our litigation lawyers are highly experienced in representing clients during mediation. We can ensure that the right issues are addressed and that the right approach is used throughout the mediation.
Court-Based Proceedings
If the matter does not resolve through dispute resolution, it may be necessary to commence proceedings before the relevant court. Litigation is complex, requiring barristers, expert reports, discovery of documents, affidavits and careful drafting of documents.
Court proceedings are prescriptive with each list, court and state having their own rules and processes. Documentation such as complaints, need to be drafted carefully from the outset and issued in the right jurisdiction and court.
This can be more complex than what it sounds. It require careful consideration of the facts and the initial complaint or responses are fundamental to the direction and scope of the case. It is important that the court proceedings are commenced with the correct court and jurisdiction. Therefore, it is crucial to obtain legal advice regarding this process and avoid any future issues.
Common Elements in a Court Proceeding
Each court proceeding is unique in stage and name but will have some similarities between the different courts. These are based on Victorian legal procedures for the sake of brevity.
Letter of Demand
A letter of demand includes a written request from the plaintiff requesting relevant compensation from the defendant by a specific date.
Preparation of Complaint (Statement of Claim)
A complaint is a court formatted document that outlines the issues and initiates the proceedings. The basis of your complaint must be clearly articulated and is fundamental to your case. This is done through a statement of claim form and filed by the plaintiff with the relevant court registry.
Defence Filed
Once the Statement of Claim is filed with the relevant court registry, the defendant has a specific time frame by which they have to file their defence by, this is usually 14 days. It is important to note that the defendant may not file a defence, in which case a judgment is given in favour of the plaintiff.
Defence Counterclaim
The Defendant also has the opportunity to file a complaint through the form of a counterclaim. In the counterclaim the defendant can assert their own claim against the plaintiff in response to the original claim.
Affidavits
Affidavits are sworn statements by the parties and those who have witnessed events that are relevant to the case. They are used to support the claim made by each of the parties and are a crucial document in the proceedings.
Calderbank Offers
A Calderbank offer refers to an offer of settlement made by one party to the other. It is a strategic legal manoeuvre, so it is important to review what the offer is, especially if the dispute does go to court.
Directions Hearing
A directions hearing is at the beginning of a matter and where the court gives the parties directions and orders. One typical court order is for the parties to attend mediation.
Court-ordered mediation
This is a mediation that the parties must attend. If not, there are consequences for not complying with a court order. Mediation is not facilitated by the court, but mediators are neutral third parties that run a meeting between the parties in a less formal setting to help bring the parties to an agreement and settlement.
Discovery of Documents
The process of discovery is where each party request copies of documents from each other. This is a crucial step in the process as it allows the parties to inspect and review each other's documents and understand the matter further.
Pre-hearing Conference
Before a court case proceeds, a pre-hearing conference is held. During this conference, the parties and their legal representatives attend court. The judge then reviews the relevant material and provides direction regarding the management of the case. The purpose of this conference is to ensure that the parties are prepared for the hearing.
Hearing
A hearing is where the parties are in court and the matter is being "heard" by the judge. In criminal cases there may be a jury. Depending on the complexity of the case a hearing may take anywhere from a few hours to weeks. During the hearing the parties may also attend mediation again.
Judgment
A judgment is handed down by a judge after the matter has been heard. The decision usually takes a few weeks to prepare and to be heard. There may be court orders that are given as a part of a judgment.
Appeal
An appeal is not an automatic right. If a party is dissatisfied with the outcome of the case, they may be able to appeal the decision but only if there are valid legal grounds to do so.
Securing the Right Legal Advice for Your Matter
Each party has different motivations in a dispute and there are many challenges that can arise during the process. Getting parties to reach an agreement quickly that also delivers the desired outcome can take some skill and time.
Our commercial litigation lawyers are experts in helping clients navigate and manage litigation and disputes. We offer comprehensive guidance on your rights and responsibilities, including potential courses of action and likelihood and strategies to achieving a favourable outcome.
We work closely with our clients to ensure that your interests are protected throughout the dispute resolution process and you understand the legal aspects of your matter. Understanding the personal and commercial consequences and risks associated will help you reach a suitable and commercially viable outcome faster.
Litigation requires careful case management and preparation in addition to the more well-known legal skills of negotiation and representation. Litigation is also a team effort and requires a team of support staff and often different lawyers to effectively manage a matter on behalf of a client.
By outlining some of what is involved in a dispute we hope you take the time to consider who will be able to represent your matter and achieve the best result for you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
