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Dispute Resolution

Legal disputes come in all shapes and sizes, whether they relate to personal or commercial matters. Key to the effective management and resolution of any dispute is identifying the legal issues involved, understanding the parties’ respective rights, and navigating options to deal with and effectively resolve the matter without undue cost and stress.

Alternative Dispute Resolution

Using an alternative dispute resolution process can be an effective way to resolve your legal dispute. Mediation, conciliation or arbitration can provide low-cost solutions and are often compulsory before instigating court proceedings in certain matters. Mediation may be used for:

  • civil and commercial disputes;
  • building and construction disputes;
  • debt recovery and contractual disputes;
  • family provision claims; and
  • family law matters.

How does mediation work?

Mediation involves a neutral person (the mediator) meeting face to face with the parties to a dispute and assisting them to reach a resolution. The meeting is generally confidential, and the mediator does not provide legal advice nor does he or she determine the dispute.

Mediation is best used when the parties are willing to negotiate in good faith and make genuine attempts to resolve the matter. Even if mediation does not provide a definitive outcome, it can help to identify the issues in dispute and narrow the unresolved matters between the parties.

Mediation is ideal even for complex matters where reports by experts may also be used for the process. Negotiated agreements can be documented and formalised in legally binding terms of settlement.

Advantages of mediation

Litigation is expensive and can become protracted. In addition to the obvious cost and time savings, mediation has many other benefits, such as:

  • The location, date and time for mediation is determined by agreement between the parties, as opposed to a court timetable. This usually means the dispute can potentially be resolved quicker and at the parties’ convenience.
  • The mediation setting is less formal than a court hearing, with a lower threshold for evidentiary formalities.
  • The parties can explore more creative solutions to resolve their dispute which might not be available through court orders.
  • Mediation can provide an opportunity to preserve the parties’ relationship. This is an important consideration in family law disputes where co-parenting is required, as well as commercial disputes where contractual arrangements may be ongoing. Resolving the dispute quickly can help the parties continue with their business relationship and obligations under the contract.

Litigated matters

Despite best efforts, it may be impossible to resolve a matter using alternative dispute resolution. In such cases, a lawyer will need to assess your matter and its likely prospects, so an informed decision may be made as to whether to pursue or defend a matter in court.

Litigation refers to the commencement of legal proceedings with the aim of resolving a disputed matter with the court’s assistance. A civil court dispute generally arises when two or more parties are unable to resolve a matter concerning their respective legal rights and obligations. The nature and value of these matters can vary significantly and accordingly, different courts (and tribunals) have been established based on the type of dispute and the monetary value of a claim.

Court proceedings are usually commenced by an aggrieved party (the plaintiff) filing a summons or application in the relevant jurisdiction and identifying the party against whom a remedy is sought (the defendant). The claim usually includes a statement of facts summarising the circumstances of the case, identifies the ‘complaint’ or area of law breached, and states the remedy sought.

A litigated matter must be carefully prepared and comply with court processes and formalities and the technicalities regarding evidence.

South Australian Civil & Administrative Tribunal matters

The South Australian Civil & Administrative Tribunal (SACAT) is a state tribunal that deals with a growing number of legal disputes across various areas of law. Matters may be resolved through agreement at a conference, conciliation, or mediation, or determined at a Tribunal hearing.

SACAT has original and review jurisdiction. It has capacity as an original decision maker for certain matters conferred by specified legislation, and in such cases, there is an internal right of review. It also has the power to review certain decisions made by a decision maker (i.e. a Government department) under specified legislation – in doing so, SACAT may affirm, vary or set aside the decision, substitute the decision, or send it back to the original decision maker for reconsideration.

Some of the issues that may be dealt with by SACAT include, but are not limited to:

  • Housing disputes – residential tenancy agreements, residential parks, rooming houses, retirement villages.
  • Guardianship and administration – the making of a guardianship order enabling a person to make health and lifestyle decisions for a person with mental incapacity; or the appointment of an administrator to assist a person with mental incapacity to manage their financial, legal and / or business affairs.
  • Mental health – reviewing certain orders made under the Mental Health Act 2009 regarding a person with a mental illness.
  • Consent to medical treatment.
  • Births, Deaths and Marriages – disputes between parents regarding a child’s name, approvals to change a child’s name, correct registration of death, applications by a child or child’s parent to register a change of the child’s sex or gender identity or for an identity acknowledgement certificate.
  • Disciplinary – allegations of professional conduct that is unlawful, improper, negligent, or unfair in the course of the professional’s work.
  • Health practitioners – review of certain decisions made by a prescribed national medical board under the Health Practitioners Regulation National Law (South Australia) Act 2010.
  • Equal Opportunity – complaints for breaches of the Equal Opportunity Act 1984.
  • Children and young people – review of decisions made by the Department of Child Protection such as those concerning placement arrangements, education, and medical treatment.

A legal dispute can escalate quickly, causing serious financial, personal and business loss – the sooner a dispute is resolved the sooner the parties can move forward with their business or personal affairs. Our focus is to protect your rights and mitigate loss wherever possible to ensure your dispute is resolved practically and efficiently. We provide effective negotiation and dispute resolution services as well as representation for matters being dealt with by SACAT and litigated matters before the Court.

If you need any assistance contact [email protected] or call 0401 234 710 for a no-obligation discussion and for expert legal advice.