Alternative Dispute Resolution

There are occasions when everybody will fall into a dispute with somebody else, you could say it is in our nature and simply inevitable.  Whatever the reason for the dispute, there is ordinarily a way for it to be settled between the parties, without the need to involve the courts.

When parties resolve their dispute outside of court, it is often referred to as “Alternative Dispute Resolution” and whilst the word ‘alternative’ is used, you should remember that the vast majority of disputes are settled without the need to attend court.

You can think of alternative dispute resolution as set of processes that range in formality from simply talking with the other party or having an expert make a decision for you.  

We can provide assistance in all types of alternative dispute resolution.

Negotiation

The most common and widely used process for dispute negotiation is negotiation.  It can be done directly between the parties or with the assistance of their lawyers or another trusted third party.  The essence of negotiation is that both parties are seeking to resolve a dispute on an amicable position that both parties accept is fair and reasonable.  You need to be open and listen to each other and be prepared to consider options to resolve the dispute and think carefully about what is actually important to you.

Mediation

In a very similar framework to negotiation but provides a slightly more formal setting whereby a neutral third party, engaged by both the parties is involved in a meeting to act as a mediator.  The mediator will encourage the parties to reach a resolution and can provide a much needed independent view on the dispute from somebody who does not take sides and whose sole aim is to assist in you reaching an amicable resolution.

Ombudsman

An ombudsman is essentially a body that provides oversight to a particular industry, profession or sector.  If you have a dispute with a person or company that is covered by an ombudsman there is usually a mechanism by which you can request that they address your dispute and facilitate a resolution for you.  Ombudsman services are widely utilized in the public sector, for instance, the Commonwealth Ombudsman and the Queensland Ombudsman handle complaints regarding their respective public sector departments.  The private sector also utilise ombudsman, for instance, the Financial Ombudsman Service handles complaints from the public concerning one its member organisation.  An ombudsman can assist in resolving a dispute but any decision they might make is not a final determination of the dispute.

Arbitration

An arbitration process is much more formal and is generally limited in its application and use in potentially costly and lengthy commercial disputes.  The parties will usually present their case in a similar fashion to that of a court and the arbitrator will decide the dispute.  The parties would agree before undertaking the arbitration process that the arbitrator decision is final and cannot be challenged or appealed.

 

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