Litigation and Dispute Resolution Strategies
Avoiding litigation as far as possible is always the smart move. Not only is litigation a costly process, but it can also be a mentally and physically draining process as well. Choosing the right litigation strategy and understanding how to avoid litigation through dispute resolution can save you a lot of money.
Strategies include:
- (a) Taking a step back in the dispute — by taking a calm, commercial view of the matter, the chance that the parties might resolve the dispute without litigation will increase
- (b) Understanding the process will encourage you to mediate a resolution as it is going to cost thousands of dollars even if you are successful in understanding that once the court makes a decision, it is final – and you could lose. By making a commercial settlement early, the parties gain some certainty and control over the outcome
- (c) By agreeing on the smaller points first, the chance of the parties finding middle ground is increased. Often, the quickest way to resolve a dispute is for the parties to start to agree on some smaller points which can lead to further agreements being made between the parties which can snowball into a resolution of the dispute
- (d) Where the parties cannot find any common ground, they should at the very least try to agree on the exact scope of the dispute, and what issues will be required to resolve it on behalf of both parties
- (e) Appointing a trusted, impartial third party to attempt to mediate a resolution to the dispute
- (f) Trying to understand the other party’s perspective. Most disputes come from a misunderstanding and, by putting oneself in the other person’s shoes, the parties may see a way through the dispute and come to a resolution
From the Case Files
An example of when these techniques worked well was when our client, a large property developer, entered into a contract to purchase a property to redevelop as part of a large managed investment scheme that operated different projects around the Brisbane, Australia area. The property owners were a couple who did not understand contracts or how to handle disputes and unfortunately, neither did their lawyer. The contract contained a term whereby our client was allowed to remove a tree on the property before settlement. This was required as our client wanted to make an application to Brisbane City Council to develop the property. If the application was made with the tree on the property, the Council may have forced our client to retain the tree and our client wanted it removed. Due to a misunderstanding between the lawyer and the property owners, permission was given to our client without the knowledge of the property owners to remove the tree. The property owners tried to negotiate a change to the conditions by placing strict conditions on our client entering the property. Rather than going to court, the parties were able to negotiate a resolution that was acceptable to both parties, the tree was removed and the property was redeveloped as required by our client.
I have always taken the view that it is in a business owner’s interest to avoid litigation as far as possible for the reasons set out in this chapter. Sometimes it is unavoidable, but every effort should be made to avoid litigation and only use it as a last resort.
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