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 Elements of the information in the publication may be out-of-date.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 5: Prepare for resolution
At this stage you have chosen to seek resolution of your dispute through ADR and you now need to prepare for the resolution process.
Good preparation will maximise the opportunity for a successful resolution to your dispute. Working through the following steps will ensure that you are properly prepared.
Presentation and Assistance
Consider whether there are other people who should attend the dispute resolution process with you.
If there is a joint owner or business partner who will need to be party to the agreement, then it is very important that they attend or, alternatively, that they provide you with the authority to make a decision on their behalf.
Consider whether you need assistance in the dispute resolution process. Depending upon the nature of the dispute it may be appropriate to bring a friend or family member, solicitor or barrister, accountant, interpreter or a professional negotiator.
If you are strongly emotionally involved in the dispute, you may benefit from the assistance of a professional negotiator. If you need advice about this, contact one of the dispute resolution providers listed in Step 4
Preview the dispute
Write down your understanding of the problem and list all the related issues in order of importance.
Prepare the information and data required to justify your claim, and bring it to the mediation.
Consider potential outcomes - best case
Identify a range of options which may resolve the problem - be as expansive as possible. Focus on addressing your real needs and concerns rather than your legal rights.
Be clear about your preferred outcome.
Identify those matters that are most important to resolve and those that are less important.
Consider potential outcomes - worst case
Consider the alternatives to reaching an agreement at the mediation:
- what will be the cost (legal fees, time)?
- what will be the impact on your business?
- what is the risk of losing a Court case and what implications will this have?
- what is the potential impact on your family and/or business associates if this dispute is not settled? (obtain their input).
Is there common ground?
Are there aspects of your commercial relationship which provide common ground. For example, will it be mutually beneficial to ensure an ongoing business relationship?
List any potential areas of common ground.
Develop a negotiating strategy
Try to understand the dispute from the other side's perspective and be as objective as possible. Identify a range of options which the other party may see as acceptable to them and consider how you may present these in negotiation.
Make sure that you understand the strengths and weaknesses of your case.
Can you identify trade-offs that may be acceptable? This may involve identifying non-financial benefits or discounting a monetary settlement in return for ongoing business, early payment or other benefit. It is beneficial to identify in advance any issues where you are able to make a concession or compromise. This may prompt the other side to also make concessions.
Think about your approach to the mediation - good negotiators usually present a combination of calmness and assertiveness. An aggressive attitude may undermine your ability to reach an agreement and escalate the dispute.
How will you present your side of the dispute in a way that is clear and comprehensive? - (prepare some notes to assist you).
If you think that there may be a personality clash or an awkward situation in the mediation, consider how you will deal with this.
Reality Test
Reconsider whether you have contributed to the problem or its escalation. If so, does this change what is required to resolve the dispute?
Will your real concerns be resolved by your preferred outcome? If not, reconsider your preferred outcome.
Discuss the dispute with a trusted adviser and ask them for their honest opinion about your position and preferred outcome.
Most importantly, consider carefully your 'bottom line', having regard to:
- the most important issues that need resolution
- the strengths and weaknesses of your position
- the potential implications if a negotiated settlement is not achieved.
Consider your bottom line in terms of 'what can you live with'.
What ever you do, keep an open mind to new ideas and suggestions. This is your best opportunity to settle the dispute without going to Court.
Back to Introduction or Go to Step 6