Legal Insight Issue 20

Traditional Resolution of Disputes

Many of our readers or their clients are, unfortunately, from time to time involved in commercial or other civil disputes.  Whether such disputes involve small or large amounts of money, they are generally resolved by Courts or Tribunals. 

In many instances litigants consider the procedures, rules, time and costs of prosecuting or defending disputes in our Courts and Tribunal to be too burdensome. 

Cyber Resolution/Mediation of Disputes

Due in part to such concerns, private companies and Court systems both internationally and in Australia have been examining and trialling alternative ways to resolve commercial/civil disputes using different types of online dispute resolution strategies and processes.  It will be interesting to follow developments in this space in New South Wales and Australia generally over the next few years.  It is possible that both private organisations and Courts may establish online means for disputants to explore options for settlement or to engage in cost effective online mediation with a view to achieving an acceptable commercial outcome. 

Some examples of these online facilities are as follows:

• NSW Civil and Administrative Tribunal (NCAT) – engaged in a pilot program in late 2014 to provide an online option for small business disputes (less than $5,000.00) to assist (by use of an online guide) with identification of issues in dispute and solution options to seek to achieve a negotiated outcome or withdrawal from the process.  If settlement was achieved, orders were made by NCAT.  If settlement was not achieved, the parties withdrew from the online process and a decision was made as to whether or not to press on with the application in the usual way.  We understand NCAT may consider implementing a system in due course. 
• The Netherlands offers an online dispute resolution journey to assist with resolution of a very wide range of disputes, including residential leasing, industrial and family law disputes.  Users are required to pay a fee for the system.  Users diagnose their dispute issues and formulate a methodology to assist in reaching a settlement via a structured negotiation system.  Online mediation or online neutral decision evaluation is also available in the event of a breakdown in the structured negotiation process.  More information can be found at: www.rechtwijzer.nl
• In the United States an entity known as "Cyber Settle" adopts an online settlement process that involves a party submitting (without reference to the other party) a range of monetary amounts they are prepared to offer to the other party.  This is commonly referred to as a "blind bidding" settlement system. Ebay uses a blind bidding system too. If the range of settlement offers submitted by each disputant overlap, the system automatically calculates the mid point between the two overlapping offers (i.e. a Plaintiff's lowest offer and a Defendant's highest offer) and that midpoint is the settlement sum to be paid by the Defendant to the Plaintiff.  This system is probably best suited to disputes about quantum only.  

How Hugh & Associates can assist

With the development of online dispute resolution or cyber mediation systems, it is clear that disputants will need the assistance of commercially minded and practical lawyers to assist with the processes and options available.  Hugh & Associates offers its services to assist in the following ways:

• Ascertaining whether an online dispute resolution system is appropriate. 
• Designing the optimal strategy to adopt from the various systems. 
• Assisting to formulate your claim, options and remedies available. 
• Formulating your best and worst alternatives to a negotiated outcome. 
• Preparing settlement submissions, terms of offers or mediation position papers. 
• Preparing settlement terms or agreements. 
• In the event that a suitable commercial outcome is not achieved, we can assist you to prosecute or defend the claim in the appropriate Court or Tribunal. 

Should you require an independent mediator, John Vohralik, (Consultant Director of Hugh and Associates) is a Nationally Accredited Mediator.  Subject to conflict check, John is able to take on private mediations.