Dispute Resolution & Litigation
What Is Dispute Resolution & Litigation?
All kinds of disputes arise between people on a daily basis, and these can be settled in a number of different ways. In law, civil disputes can be settled by the process of litigation, which involves the courts system, or by alternate dispute resolution methods that do not involve the courts. In general, the laws that govern dispute resolution are designed to encourage people to use alternative methods before resorting to the courts.
Civil disputes—meaning disputes that do not involve criminal charges cover a wide range of people, organisations, and situations.
- Commercial disputes occur between and within organisations and partnerships.
- Consumer disputes are disputes between businesses and their customers.
- Bankruptcy and insolvency proceedings may involve a dispute between the insolvent individual or organisation and their creditors.
- Landlord and tenant disputes typically arise because either party has broken their tenancy agreement in some way.
- Neighbour disputes involve people who live in the same street or neighbourhood. These kinds of disputes are usually solved without legal help but sometimes one or both parties might need the advice of a solicitor.
- Disputes between a divorcing or separating couple are often settled via alternative resolution methods. When a couple divorces the law requires they attempt at least one alternative method of settling financial or custodial disputes before involving the court.
Alternative methods of dispute resolution are negotiation-based methods that encourage people to meet and discuss their dispute with the hope of coming to an agreement. The legal system offers three main alternatives: arbitration, mediation, and negotiation. Depending on the kind of dispute involved, people who have a dispute may have to try at least one of these methods before they can start the litigation process. There are some exceptions to this. For instance, if a marriage has ended due to domestic abuse, the requirement is typically waived.
Processes Involved in Dispute Resolution
If you request the help of a law firm to help you resolve a dispute, they should start by listening to your account of the situation, and then giving you advice on the best way to proceed. If they think you have a legitimate case, they’ll typically recommend one of the following methods.
Negotiation is the least formal method of dispute resolution, where two disputing parties and/or their solicitors discuss the dispute before starting any legal processes. This may involve discussion via letter or in person. If this initial negotiation doesn’t solve the problem, another method can be tried.
Mediation involves a meeting between the disputing parties, along with their solicitors if they have them. The meeting is run by a trained mediator, who helps the parties try and reach an agreement. However, the mediator can’t make any binding decisions, so this method might not result in an end to the dispute.
Arbitration is an alternative method of resolution that results in a legally binding decision. The process is similar to a court process, but is carried out privately. An arbitrator listens to evidence from both parties, and then makes their decision based on the evidence, just as a judge would.
Collaborative law involves one or more meetings between the disputing parties and their solicitors, with the express objective of reaching an agreement. At the start of the process, both parties sign a contract affirming their commitment to coming to some kind of resolution, and the process continues until an agreement is reached.
If you hire a solicitor to help you resolve a dispute, they’ll usually recommend one of the above alternative methods of resolution as these alternative methods are less costly and more private than litigation. If however you try one or more of these alternative methods but are not able to reach an agreement, then your solicitor can help you start the litigation process if you want to take the matter further.
In litigation, you’ll work with your solicitor to build a case by gathering evidence and witnesses that back up your claim (or your defence, if someone else has lodged a claim against you). During the trial, you’ll have the chance to state your case before a judge. Note that in a civil case, the burden of proof lies on the claimant. This means that the claimant’s case must show that the defendant is likely to be liable for whatever claim is being made. If you are the defendant, your case will involve refuting the claim being made against you.
Litigation does result in a legally binding judgement, but those judgements aren’t necessarily enforced by the court system. Often it’s up to the individuals involved to ensure that the judgement is carried out.
How can a Solicitor Help?
The help and advice of a solicitor is invaluable in resolving many kinds of disputes. One reason is simply that when you resort to the legal system to resolve a problem, it’s important to have someone on your side who understands the rules of the system. Another is that resolving a dispute through the legal system usually involves completing and filing a great deal of paperwork and documents, and this can be difficult for a layperson to do accurately.
Some other things that solicitors can do to help resolve a dispute include:
- Provide legal advice on how to proceed with making or defending a claim, and what to do at each stage of the process.
- Correspond and negotiate with the other party or their solicitor to come to an agreement or to arrange a dispute resolution meeting.
- Represent you at a dispute resolution meeting or attend the meeting with you.
- Advise you on pursuing litigation if alternative resolution methods do not work.
- Develop a legal strategy for pursuing or defending your case, locate witnesses and evidence, and represent you in court. Alternatively, in some cases they might work with a barrister who will represent you in court.
- After a court case, give you legal advice if you wish to lodge an appeal, or if you need help enforcing a judgement.