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Disputes are a part of business life. Litigation is not for everyone and sometimes alternative methods are more suitable to resolve the situation.  Litigation requires significant preparation and compliance with court formalities and evidentiary thresholds.  The decision to litigate (commence Court proceedings) should be carefully considered.

Using Alternative dispute resolution (appropriate dispute resolution/Mediation/ conciliation or arbitration) to resolve your dispute

If you are involved in a legal dispute, using an alternative dispute resolution process such as mediation is often a cost-effective and viable option. Effective dispute resolution requires a skilled negotiator with a working knowledge across all areas of commercial law. To recommend a resolution a lawyer will need to:

  • obtain the relevant facts;
  • identify and narrow down the issues in dispute;
  • apply the relevant areas of law;
  • assess the parties’ respective legal positions, their strengths and weaknesses;
  • propose solutions that will deliver the best commercial outcome in the circumstances.

Need help to resolve your dispute?

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.

We are commercially insightful and seek practical solutions, considering negotiation and mediation as a first option for most legal disputes. Our lawyers will talk about strategy and provide you with a written advice aimed at achieving the best possible outcome given your objectives and circumstances.

Despite best efforts, it may be impossible to resolve a dispute using mediation. In such cases we will carefully assess your matter and its likely prospects of success if litigated, so you can make an informed decision. We are experienced advocates and, if instructed, will pursue your case vigorously in court.

We offer expert representation for complex defended litigation and defended debt recovery matters.  We can assist with:

  • Advice on strategy in litigation and the provision of litigation action plans
  • Commencing and / or defending court proceedings
  • Cross Claims
  • Security for costs applications
  • Obtaining / managing evidence and expert evidence
  • Case management
  • Selection and briefing of suitable counsel
  • Negotiating settlements and preparing binding terms of settlement
  • Drafting affidavits
  • Consent orders
  • Default judgment and enforcement of judgment
  • Specific and strategic advice on cause of action and best outcomes
  • Review of legal cases and merits on commercial outcome

Advantages of Mediation

In addition to the cost and time savings, mediation can have many other benefits, such as:

  • The location, date and time for mediation can be agreed between the parties and not determined by a court timetable.
  • The mediation setting is less formal than a court hearing, and there is generally a lower threshold for presenting evidence.
  • The parties can explore more creative solutions to resolve their dispute which might not be available through court orders.
  • Mediation offers an opportunity to preserve the parties’ relationship. This can be beneficial in commercial arrangements where contracts for ongoing products or services have been entered.

Need a Second Opinion on litigation?

At a minimum, and depending on the situation, you should ask your lawyer (before you sue):

  1. What is the cause of action? An explanation in plain English of the legal basis upon which the claim is being made.
  2. What does the cause of action entitle me to? What is the lawful remedy being sought? Is it an order for payment of money, damages, specific performance, or restitution?
  3. How is the remedy formulated? If damages, how are they calculated and does the court determine how much I will receive or is it a sum certain?
  4. What evidence is needed to prove the facts to make out the cause of action? How is that evidence to be given to the court (i.e., orally or by Affidavit)? Who are the likely witnesses involved?
  5. Do I need to engage an expert witness? If so, how much will it cost? Expert evidence is required to prove the facts necessary to make out a cause of action typical in technical matters (i.e., building, manufacturing, insolvency). Experts are expensive and add to the cost of litigation.
  6. How much is this litigation likely to cost – if we don’t win, and if we do win? What is the worst-case scenario and the best-case scenario?
  7. What are my prospects of winning in percentage terms?
  8. Have you done this type of case before and what was your experience?
  9. How long is this case likely to take?
  10. What are the uncertainties? What are the matters out of my control?
  11. Can I pull out? What is the point of no return?
  12. Can you provide me with a written costs disclosure statement and costs agreement?

If you need any assistance, contact one of our lawyers at [email protected] or call 03 9607 8279 for a no-obligation discussion and for expert advice.