Disputes - Your Options

A frustrated party involved in a dispute may ask, "What action can I take?" and "What are the alternatives?"  This page outlines the options which are available.  It is not intended as legal advice and it should not be treated as such.  More information is contained elsewhere on this site or may be obtained from an enquiry to us.  Advancing from 'soft' to 'hard' the options open are:-

1.  Negotiation - talking it through

By the time you read this it may be rather late to negotiate but the counsel of perfection regarding disputes is 'avoid them'.  Try to identify a 'difference' before it becomes a 'dispute' and it may be possible to talk it through and negotiate solutions.  Churchill said "Jaw jaw is better than war war."  Reaching agreement, face to face, could save stress, time and money later.

2.  Mediation, with or without a meeting

Mediation is negotiation with assistance from a third party, a mediator, who moves between Party A and Party B communicating with each in confidence, offering ideas, making suggestions and, with the agreement of the Party, carrying information between A and B.  By shuttling in this way the mediator should be able to assist the parties to narrow and, hopefully, close the gap between them.  Mediation may be with or without a meeting.  If it is without a meeting the mediator communicates by telecom and/or letter, fax or e-mail.  When, as is often the case with neighbour and some other disputes the parties do not wish to meet each other, mediation without a meeting can be most successful.  Disputes Resolved's experience is that a large majority of neighbour disputes are resolved without a meeting.  Such mediations can commence within hours of the parties agreeing to mediate.

Mediation with a meeting is similar to mediation without.  The procedures are informal, private and may be held on site or at any place or time to suit the convenience of the parties and the mediator.  The essence of mediation, generally, is that the parties reach their own agreements which are in their own interests.  They are in control of the outcome and they can call a halt at any time.  Mediation with or without a meeting is significantly less costly than Option 4.  If mediation fails the parties can still go to Court.

3.  Expert determination

The parties agree to have their dispute determined by an expert who examines the evidence put before her/him.  The parties agree in advance to be bound by the expert's determination.  Expert determination is a halfway house between mediation and arbitration (see Option 4 below).  The parties lose control of the outcome but Disputes Resolved can usually arrange expert determination within weeks and at a place and time to suit the convenience of the parties and the expert.  The meeting is informal and the cost should be comparable with mediation.

4.  Litigation and arbitration are both 'going to Court'

Proceedings are formal and are determined by legislation.  Lawyers, witnesses, and a judge or an arbitrator are involved.  If a dispute is of a technical nature the Court will often order that the case should be referred to arbitration.  The parties are bound by the Court's judgment or the arbitrator's award which may please neither party.  Going to Court may take months and may be very expensive.  Even if one party succeeds with their claim they are unlikely to recover all their costs and they will have all the worry and inconvenience in the meantime.  The Courts now consider mediation as an important part of proceedings.  If a party fails to agree to mediate without good reason, this may be reflected in any Order that the Court may make with regard to costs.

The choice is yours.