It is important to understand what types of dispute resolution methods are appropriate for your situation when facing a legal dispute. More importantly, it is vital to understand how you can be proactive in avoiding a dispute in the first place.

Negotiation

Negotiation is usually always the first step involved in resolving a dispute between two or more parties. It involves parties communicating directly or through their representatives, either speaking with each other or in writing, to try to reach an agreement.

Mediation

This type of dispute resolution involves an impartial person (mediator) assisting parties to negotiate a settlement to their dispute. It can be used for a range of disputes from family law matters to business disputes. The mediator’s role is to encourage the parties to negotiate in good faith with the aim of finding a workable solution.

Facilitation 

Facilitation is like mediation but more commonly used for groups that are in conflict, for example local planning matters or body corporate disputes. Facilitation can also be used as a forum for differing points of view to be discussed and considered in reaching an agreement. Facilitation is led by an impartial person called a facilitator.

Conciliation

Conciliation is a process in which the parties to a dispute try to reach an agreement with the help and advice of an impartial person, referred to as a conciliator. The conciliator usually has some experience of the matter being disputed and can advise parties of their respective rights and obligations. Equal opportunity disputes are often resolved through conciliation.

Arbitration

The arbitration process involves parties to a dispute presenting their case to an independent third person (the arbitrator). The parties are generally bound by the arbitrator’s decision. Arbitration is sometimes used when the methods of dispute resolution have proven unsuccessful. Arbitration is mostly used in situations such as industrial relations or contractual disputes.

Victorian Civil and Administrative Tribunal

The Victorian Civil and Administrative Tribunal (VCAT) can resolve certain legal disputes in Victoria, is less formal than a court and hears and decides cases according to the law. VCAT’s main purpose is to provide an accessible, efficient and low-cost tribunal which focuses on the handling and mediation of disputes.

If your dispute falls under the jurisdiction of VCAT, you will need to take part in a compulsory mediation session with a VCAT mediator. If appropriate, the mediator will work with the parties to try and assist them to resolve their issue on the day of the hearing. This service is a quick and inexpensive way for the parties to resolve their claim without having to go through a full hearing.

You can fill out an online application and then will be allocated a conciliation or hearing date.

Some matters, such as building disputes, will require parties to settle their dispute through conciliation with a Tribunal member. If the parties fail to reach an agreement, they will then be referred to a hearing. You do not need legal representation at VCAT, however if you wish to have a lawyer represent you, you need to notify the other party beforehand.

VCAT Orders are treated the same as court orders.

Debt recovery

Debt recovery is an unfortunate but common situation experienced by many businesses. There are various ways to pursue an unpaid debt including the commencement of Court proceedings or by serving a statutory demand under the Corporations Act 2001.

You can also commence legal action under the small claims division in the Magistrates’ Court which provides a simple debt recovery procedure that is relatively informal. The Magistrates’ Court can deal with debt recovery claims up to the value of $100,000. Proceedings for debt recovery claims above $100,000 can be brought in the County or Supreme Court of Victoria.

How can we help?

Our aim is to try to keep your matter away from the courts, and minimise the risk, stress, cost and uncertainty of litigation and court disputes. Where applicable, we endeavour to settle your dispute early using negotiation or mediation.

If your matter cannot be resolved using an alternative dispute resolution process, we can advise you on the feasibility of pursuing or defending your case in court. We are experienced litigation lawyers with proven expertise across a wide range of Victorian courts and tribunals including the Magistrates’ Court of Victoria, County Court of Victoria, the Supreme Court of Victoria and the Victorian Civil and Administrative Tribunal. We can help with:

• Commercial and business disputes
• Property law disputes including co-ownership disputes, partition proceedings, variation or removal of restrictive covenants and adverse possession
• Commercial and retail leasing disputes including eviction and ‘lock outs’
• Building and construction disputes
• Breach of contract disputes
• Wills and estates disputes
• Debt recovery

If you need assistance, contact one of our lawyers at [email protected] or call (03) 9432 3131 for expert legal advice.