Successful Dispute Resolution - Step 3 

The following publication is currently under review.  Elements of the information in the publication may be out-of-date.  Please use the information with caution.

Step 3: Select an approach

This sheet is designed to help you select the most appropriate dispute resolution method for your dispute. Please work through the steps methodically and if additional information is required, contact one of the Alternative Dispute Resolution providers listed in Step 4 

With regard to your dispute:

Would you rather negotiate a settlement than go to Court?
YES - CONTINUE
NO - SELECT LITIGATION

Is any aspect of the dispute about a potentially 'criminal'* matter, as opposed to a 'civil' matter? (*criminal matters can usually be defined as those that may warrant police involvement).
YES - SEEK LEGAL ADVICE PRIOR TO CONTINUING
NO - CONTINUE

Do you need a binding legal interpretation of a fundamental contract clause?
YES - SELECT LITIGATION OR ARBITRATION
NO - CONTINUE

Do you have a contract that requires arbitration to resolve any dispute that arises?
YES - SELECT ARBITRATION
NO - CONTINUE

Are you seeking to establish a legal precedent?
YES - SELECT LITIGATION
NO - CONTINUE

• Is there a risk that a Court decision will not provide you with your preferred outcome?        
• It is important to maintain an ongoing business relationship?        
• Would it benefit your business to have the matter settled quickly?
  Is the cost of settling the dispute an important factor?        
• Publicity about the dispute or its outcome should be avoided.        
• The dispute lends itself to a realistic, commercial settlement rather than a court's legalistic decision.        
• A full appreciation of my needs, interests, concerns and expectations, rather than legal rights, is most important.        
• A mediator may help defuse emotion or hostility which otherwise may bar a settlement and could improve communication between the parties.        
• Will direct negotiations or continued inaction deepen into litigation, increase hostility and inflexible positioning by either party? 

IF YOU HAVE SELECTED 'YES' FOR ANY QUESTION THEN GO TO THE ADR OPTIONS BELOW

Alternative Dispute Resolution (ADR) options

If you have progressed this far through the checklist it should by now be apparent that an alternative dispute resolution (ADR) approach would be beneficial for the resolution of your dispute.

There are a large number of ADR methods which may be appropriate depending upon the particular circumstances of your dispute, including mediation, assisted negotiation, inter-mediation, facilitation, expert determination and partnering.

The information below will assist you to select the most appropriate ADR method for your dispute.

Select assisted negotiation

If ongoing negotiations are deadlocked or bogged-down over sticking-points, which a joint negotiator/mediator may help resolve.

Select mediation

If you are willing to work with the other party, with the assistance of a mediator, to identify issues, develop options, and try to reach an agreement.

Select inter-mediation

If the dispute is relatively large, complex or sensitive and would benefit from independent analysis, reality testing, a fresh perspective and creative input.

Select facilitation

If there are many parties or groups involved and many issues in the dispute.

If there is a need for assistance or independence in the exchange of information, agenda setting, communication processes or the chairing of meetings.

Select expert determination or recommendation

If the dispute involves technical issues, such as standards, compliance, quality specifications, quantification of loss or similar issues and would benefit from independent expert advice, determination or recommendation.

Select partnering

If a long-term working relationship and/or mutual goals are at risk.

If there is a major project that must be completed within a tight timeframe and with minimum disruption.

If it is important to maintain trust and effective communication in the working relationship.

If you find yourself in a dispute that is threatening to damage your business you should seek independent advice. Most small businesses in legal disputes consult a solicitor. This page offers you some questions to ask your solicitor about ADR.

Questions for your solicitor

1. I've read the Small Business Information Kit on Alternative Dispute Resolution and I believe my dispute can be resolved by one of the ADR options referred to; what option do you think is the most suitable for my dispute?        
2. If your solicitor disagrees that ADR is suitable then ask, "Please give me your reasons why none of the ADR options referred to in the Kit are suitable".        
3. If your solicitor advises you that Court proceedings (litigation) is the best option for resolving your dispute, then ask: 

4. If you were in my shoes and wanted to get on with developing a business, what would you do with the dispute - try ADR first and if it doesn't work then litigate, or go straight to litigation? 

Note: It is recommended that if your solicitor advises you that litigation is best for resolving you dispute, that you should ask for a letter of advice from your solicitor setting out his/her supporting reasons, your likely costs, your chances of success and when the matter is likely to come before the Court. Please also note that the Dispute Resolution Advisers set out in Step 4 will be able to provide you with independent advice on your dispute resolution options.

If you are still unaware of the most appropriate dispute resolution method for your dispute, or if you would like to obtain additional information on any of these options, the 'ADR providers' listed in Step 4 will be able to provide advice.

Step 4 also provides information on assistance that is available from industry associations.

Back to Introduction or Go to Step 4