Alternative Dispute Resolution

Alternative Dispute Resolution in NSW

Not every legal dispute needs to be resolved through a final court hearing. In many matters, negotiation, mediation or another form of alternative dispute resolution can provide a practical way to resolve a dispute without the cost, delay and uncertainty associated with continuing litigation.

Russell Kelly & Associates can advise clients involved in disputes and assist in identifying an appropriate strategy for resolving the matter.

What is Alternative Dispute Resolution?

Alternative Dispute Resolution, commonly referred to as ADR, describes processes used to resolve disputes without having a court determine the matter at a final hearing.

Depending on the nature of the dispute, ADR may take place before court proceedings commence or during existing proceedings.

The appropriate process will depend upon the issues in dispute, the parties involved and the outcome being sought.

Negotiation

Negotiation involves the parties attempting to reach an agreed resolution of their dispute.

This may occur directly between the parties or through their legal representatives. A negotiated settlement can allow the parties greater control over the outcome and may preserve a commercial or personal relationship that could otherwise be damaged by prolonged litigation.

Before negotiating a settlement, it is important to understand your legal position, the strengths and weaknesses of the matter and the practical consequences of the available options.

Mediation

Mediation is a structured dispute resolution process in which an independent mediator assists the parties in attempting to reach an agreement.

The mediator does not ordinarily decide who wins the dispute. Instead, the mediator assists the parties to identify the issues, consider possible solutions and negotiate towards an agreed outcome.

Mediation can be particularly useful where the parties wish to resolve a dispute while avoiding the expense and uncertainty of a final court hearing.

Arbitration

Arbitration is another form of dispute resolution in which the parties refer a dispute to an independent arbitrator for determination.

Whether arbitration is available or appropriate will depend upon the nature of the dispute, any contractual provisions applying between the parties and the circumstances of the matter.

Commercial Dispute Resolution

ADR can be particularly useful in commercial disputes where the parties need to consider not only their legal rights but also costs, ongoing business relationships, confidentiality and the commercial consequences of prolonged litigation.

Commercial disputes may involve contracts, shareholders, partnerships, business transactions, property, leases, debts or other business relationships.

Learn more about Commercial Litigation and Business Disputes.

When Should You Consider ADR?

Alternative dispute resolution may be considered at different stages of a dispute.

In some cases, early negotiation can resolve a matter before formal proceedings are commenced. In others, mediation or another dispute resolution process may take place after proceedings have begun.

The appropriate timing will depend upon the circumstances, including the information available, the positions taken by the parties and whether there is a realistic opportunity to negotiate a satisfactory outcome.

Preparing for Mediation or Negotiation

Preparation can significantly affect the effectiveness of a negotiation or mediation.

This may involve reviewing relevant contracts and correspondence, identifying the important factual and legal issues, assessing potential outcomes and determining what terms of settlement may be acceptable.

Legal advice can also assist a client to understand the consequences of a proposed settlement before an agreement is finalised.

Resolving a Dispute Without a Final Hearing

Resolving a matter through ADR can sometimes reduce legal costs, save time and provide greater flexibility than a court-imposed outcome.

However, settlement is not appropriate in every matter. Where an acceptable resolution cannot be achieved, it may be necessary to commence or continue court proceedings to protect or enforce a client’s legal rights.

Speak to Russell Kelly & Associates

If you are involved in a dispute or would like advice about negotiation, mediation or other dispute resolution options, contact Russell Kelly & Associates to discuss your circumstances.