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LIV President's Blog 2014

LIV President's Blog 2014

Geoff Bowyer, LIV President 2014 on the latest issues and topics. Read and comment.

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Alternatives to litigation that can keep you and your client happy

Alternatives to litigation that can keep you and your client happy

There’s no doubt that litigation is an important part of the justice system, but it can often be a long, drawn out and stressful process for both the client and solicitor, and the large majority of cases usually settle before they go to a court judgment.

There are situations where alternatives to litigation are preferable: you have an emotionally fragile client;a family dispute with kids involved; an increasingly complicated dispute; a dispute that involves multiple parties; or you simply have an opportunity to secure a better financial outcome for the client by minimizing litigation costs.

Alternatives to litigation are all part of the armory of a good lawyer. The real skill is knowing which is the most appropriate alternative dispute resolution mechanism to achieve the best result. So the question is: what are the alternatives to litigation that could trigger an early resolution or outcome that is satisfactory to all parties?

Mediation is a process in which an independent and impartial person is appointed (either by the parties or a court/tribunal) to facilitate communication of the issues and the needs of those involved without prejudicing their legal rights. The mediator has no power to make a decision or give advice to the parties, but may canvass options to assist the parties in reaching an acceptable resolution of the dispute. Mediation should be considered when matters between parties are complex; parties are in ongoing contact; or there are multiple parties involved. Mediation is relatively low cost and fast, and should be considered in most disputes. It may also be used with other methods such as arbitration, or even litigation if the dispute remains unresolved. The LIV encourages the use of solicitor mediators who are either LIV Accredited Specialists in mediation or are accredited under the National Mediator Accreditation Standards and are listed in the LIV Mediators Directory.

Farm Debt Mediation In Victoria, before commencing debt recovery proceedings on farm mortgages, creditors must offer mediation to the farmer. The mediator's role is to facilitate the discussion and they will not provide advice on the matters in dispute. Mediation is a simple, voluntary and confidential process that is quick, accessible and affordable.

Arbitration is a dispute resolution processin which the parties agree to an imposed settlement by an expert (the arbitrator) familiar with the field in dispute. The agreement is entered into by the parties by way of contract. Arbitrations are held in private and are generally adversarial in nature. The process involves the arbitrator weighing up the evidence and making a decision in favour of one of the parties. Unless the parties otherwise agree, the arbitrator’s decision is legally binding.The LIV Arbitrators Directory contains a list of arbitrators.Victoria also boasts a world class Commercial Arbitration and Mediation Centre.

Family Dispute Resolution (FDR) is a process that helps couples affected by separation and divorce to sort out their dispute. It can deal with a range of issues relating to property, money, and children. This process has the advantages of being private and confidential and less stressful than going to court. This process might arise out of a court proceeding in order to avoid further court appearances.FDR services are provided by a range of individuals and organisations such as Family Relationship Centres, community organisations, and individuals such as lawyers, social workers or psychologists.

Collaborative law is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers to achieve a settlement that best meets the needs of both parties and their children without the stress of litigation. This voluntary process requires the couple to sign a contract binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family related litigation.This process has the advantages of being private and confidential and less stressful than going to court. Collaborative law differs from traditional mediation as both parties are represented by a solicitor.

The LIV Collaborative Law section is an excellent place to find more relevant information and resources.

Conciliation, though similar to mediation, enables the conciliator to offer an opinion on the relative strengths of the matters in dispute. If the parties agree in advance, a conciliator may also issue a binding opinion on the matters in dispute.

However, while these methods provide some good alternatives to litigation - and may be more cost effective for the client, faster, and potentially less acrimonious – the possibility of litigation eventuating should be borne in mind from the outset.Unfortunately, sometimes litigation becomes the only option in situations where clients refuse to take your advice; one of the parties refuses to participate in an alternative dispute resolution process; or there is a difficult legal point at stake that needs to be determined by a court.

I often say to clients that there are only two things certain about litigation - the uncertainty of the outcome and as a client, the additional cost you will incur. These are both good reasons to try an Alternative Dispute Resolution option. 

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