As an active Sydney law firm we regularly deal with dispute resolution procedures. Dispute resolution as a whole represents a wide range of methods through which potential litigants may be able to resolve their disputes. The legal systems provides varying structures for the resolution of disputes; the term itself has come to include the full length of the legal spectrum for dealing with complaints including the extrajudicial forms like negotiation and mediation right through to litigation which will land you in court.
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The most common options that potential litigants may choose to resolve their disputes include:
litigation (also known as adjudication).
Alternative Dispute Resolution and You
Alternative Dispute Resolution (ADR) is the process of resolving a dispute without judicial determination. An independent third party assists potential litigants to resolve their dispute through negotiation, mediation or conciliation. An ADR does not include any decisions made by a court of tribunal and therefore offers potential litigants the chance to resolve their complaints whilst avoiding costly and time-consuming legal proceedings.
There are three main types of ADR processes in Australia
Facilitative: A dispute resolution practitioner assists the disputing parties to identify the disputed issues, develop their options, consider the possible alternatives to litigation and try to reach an agreement. Entire disputes or sections of a single dispute can be reconciled this way. Examples include: mediation, conciliation, facilitation and facilitated negotiation.
Advisory: A dispute resolution practitioner considers an appraises the dispute, providing advice as to the facts of the dispute, the law, and occasionally, desirable outcomes and how they can be achieved. Examples include: case appraisal, conciliation (where advice is offered or used) and early neutral evaluation.
Determinative: A dispute resolution practitioner evaluates disputes and makes a decision. This can often include the hearing of formal evidence from all parties. Examples include: arbitration, expert determination and private judging.
Litigation and You
While ADR is often encouraged, litigation remains the most common form of dispute resolution in Australia. Pleasingly though, 95% of civil cases commenced in court end up being settled out of court through assisted ADRs like mediation, negotiation and expert appraisal.
In litigation proceedings, parties submit their dispute to the relevant court. The final decision in the litigation process comes downs to the a Magistrate or Judge. Throughout the proceedings it is this judicial officer who remains the official impartial third party, making his or her decision based on the evidence and facts at hand.
The process of litigation can be costly, confusing and extremely time consuming, with much back-and-forth between litigants and their lawyers.
While litigation is best kept as a last resort there are some disputes that require an official judicial decision. These include, but are not limited to, the dissolution of marriage, grants or probates in respects to people’s Wills, most criminal matters and urgent application where a third party is required to act on your behalf e.g. the federal police when it comes to the removal of a child or financial institutions when you need to withhold payment.