5 Things to try before going to court

Date: January 27, 2017
Author: Menashe Segman
Posted in: Insights

 

Are you thinking of going to court? Did you know that the moment you walk into a lawyer’s office with the intention to litigate you are spending money? During the litigation process all parties involved are quickly emptying their pockets to satisfy an array of required fees. These include court fees, filing fees, service fees, discovery fees and of course, the most dreaded of all, barrister fees.

It’s clear that most parties don’t know the breadth of what is involved in a long and drawn out court dispute. In fact, it is common that even the successful party ends up being out of pocket. In general, the loser pays the winner’s costs, however not always in its entirety. Rather, they are subject to a scale of the relevant court, whereby every cost is discounted to the ‘standard’ rate. Aside for actual legal fees, the time and resources consumed in a litigation are quite often even more costly than the fees themselves. The lost revenues that could have been made by directing the resources to profitable activities are a huge loss for some corporations or businesses bogged down in a long lawsuit.

Alternatives to resolving disputes in court have been recognised since the 1970’s, however they did not become widespread until fairly recently due to most litigation being the norm or the first port of call for practising solicitors. This misconception is slowly being remedied with more schools teaching the importance and practicality of Alternative Dispute Resolution. The most common methods are:

 

Communication

Many people approach their lawyer with a new course of action, ready to jump on the court bandwagon but many times they are forgetting the basics of resolving disputes: don’t perceive the other side as your opponent and instead try to remember what instigated the dealings.

Obviously, there were mutual benefits then and somewhere along the way things got a little ‘complicated’. Have you tried calling them? Invited them over for an informal coffee? Have you thought about what would be an acceptable, fair outcome for all parties? Sometimes all someone wants is a heartfelt apology or a turn to be heard. These steps may seem simple but it might be all you need to settle this dispute and in turn save time, money and most importantly the relationship!

 

Negotiation

If communication between the parties hasn’t yielded any results, the next step would be to approach a lawyer but not with the intention to litigate immediately. The client and lawyer should discuss the issue in its entirety and begin a formal negotiation with the other side. A negotiation can include letters of demand, offers of compromise, exchanges of evidence that may be used in a trial, meetings and phone-calls all in an effort to resolve the dispute without going to trial. Although legal negotiation is somewhat combative in nature, it is by far the more efficient option when compared to going to trial. Negotiation should always run alongside a trial in the hope of settlement outside of court.

1.   Mediation

Mediation is generally a method of dispute resolution brought about by negotiation and which often produces the result most beneficial for all parties. It involves an impartial mediator assisting the parties to work through the problem, discuss each element they have issues with and hopefully arrive at a solution. Forcing the parties to come to their own solution is the best way to reach a mutually beneficial outcome. In recent years, a court often orders the parties to conduct a mediation prior to continuing with a trial. A court may be doing it to conserve their resources and prevent the congestion of the court system, however the parties gain the most from settling prior to trial.

2.  Arbitration

Arbitration is a process somewhat similar to litigation however it is governed by rules set by the parties. It is largely used in a commercial setting whereby the original contract includes a clause for arbitration if there is a disagreement. The parties appoint an impartial expert or panel of experts, sometimes a retired judge, a barrister or a specialist in the relevant field to hear the dispute. The parties then present their side of the story to the arbitrator who will give a binding determination to settle the dispute. Although adversarial in nature, this method of dispute resolution is still far more efficient for all parties involved.

3.  Hybrid Mediation-Arbitration

This mix of mediation and arbitration is great when the parties want an expert to reach a solution however they don’t want it to be legally binding. It differs from mediation since mediation requires the parties to come to a solution on their own assisted by an expert. Even though the decision of the expert may not be binding, it should at least be very persuasive as it may indicate how a judge may see the dispute.

Fights, disagreements, disputes and clashes are a part of life that we cannot avoid. How we deal with these issues moving forward is the real deciding factor. Are you going to reach an outcome beneficial to both parties? Are you prepared to spend the next 18 months in and out of court? Are you liquid enough to fund your litigation in the hope of recovering some of your costs 2 years down the track? Assuming the answer is no to all the above but you still have a dispute to resolve then contact Warlows Legal today. We are a forward thinking law firm with a view to minimise costs for our clients while achieving the best possible outcome for all parties involved.

Contact us to discuss your options before going to court.

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