Top 10 Tips for Dispute resolutions & litigation

Litigation is risky, time consuming and expensive.
In this article we draw on our experience in dispute resolution and litigation to bring you our top 10 tips in this area:

1. Keep written records
The best evidence is documentary evidence. Written agreements have clearer terms and are much easier to enforce than verbal agreements. Verbal agreements and exchanges suffer from the problem of one side’s version of events against the other side’s and who is to be believed. Courts are more likely to accept a contemporaneous written document in the absence of any contradictory evidence. Create and maintain contemporaneous written records, such as emails, text messages and file notes. Confirm verbal communication in writing so that you have a written record of what occurred. If you receive written communication with which you do not agree, make sure you respond in writing so that there can be no suggestion that you agreed with the contents by failing to reply.

2. Keep in mind that what you say, do and write could end up as evidence
Everything you say, do and write could one day end up as evidence in Court proceedings and potentially be used against you including any relevant social media posts. If a dispute arises, act reasonably in your communication with the other side. Think about how your communication may be viewed by the Court. If your communication with the other side ends up in Court, you want the Judge to view you as the reasonable party and the other side as the unreasonable party.

3. Engage a lawyer
Lawyers can be expensive, but so can mistakes. A lawyer engaged early in a dispute or litigation can provide advice on options and strategy, focus the parties on the relevant issues and actually keep costs down. We have seen examples where parties have tried to resolve matters themselves, made costly mistakes, escalated the problems/issues and then sought legal representation once the dispute is out of control or they have dug themselves deeper into the problems. It can be commercially advisable to engage a lawyer early at the first sign of a dispute. Simply put, you don’t want to be penny wise and pound foolish.

4. Provide evidence to your solicitor as soon as possible
Once you engage a solicitor, provide them with as much information and documentation regarding the matter/dispute/litigation as possible as soon as possible, even if you are not sure of its relevance. It is much easier for lawyers to provide timely and accurate advice if they have all of the relevant information. Withholding documents is not helpful and can harm your case. Your lawyer is best placed to determine which documents are relevant and useful. It also helps to provide the evidence to support your claim upfront before Court proceedings are commenced, rather than afterwards.

5. Maintain privilege and confidentiality
Communication between a lawyer and client is protected by legal professional privilege. If a dispute arises or you are carrying out an investigation, engaging and communicating with a solicitor can protect the communication from disclosure to the other side.

6. Be aware of limitation periods
You have a certain amount of time within which to commence litigation depending on the type of claim. As soon as you become aware of a claim or cause of action, you should seek advice regarding the limitation period so that you do not lose the opportunity to enforce your rights before the time period expires.

7. Negotiate early
There are many different ways to resolve disputes including by negotiation, mediation, arbitration, expert determination and litigation. Negotiating a resolution of a dispute early can reduce the time, costs and stress involved in lengthy disputes and litigation. It can also provide certainty because litigation can be unpredictable and there is no guarantee of any particular outcome. Having said that, it might not be possible to settle the dispute early if the other side are not willing to do so.

8. Be prepared to compromise
The best way to ensure the resolution of a dispute is to compromise. You may not agree with the other side’s position, and they may not agree with yours, but if all parties compromise, it is more likely that a matter will settle and avoid the uncertainty, time, costs and stress involved with ongoing disputes and litigation.

9. Be commercial
Do a cost/benefit analysis. Weigh up the value of the claim, the costs of the dispute, the prospects of success and the likelihood of recovery. If the costs of the dispute exceed the value of the claim, it may be more commercial to resolve the dispute. If the value of the claim exceeds the costs of the dispute or litigation, it may be advisable to enforce your rights through litigation if the matter is unlikely to resolve by negotiation. In particular, you need to consider if the likelihood of recovery against the other party. It might not be worth pursuing litigation if the other party has insufficient assets from which to satisfy any judgment debt against them and any costs order in your favour.

10. A litigated outcome may not achieve a final result
Even if you win, the dispute may not be over. The other side may appeal. You may have to have your costs assessed and the certificate of determination registered as a Court Judgment in order to enforce a costs order in your favour. You may have to take further legal steps to enforce a Judgment if the other side does not comply. In Judicial Review proceedings, a Court finding that a decision was invalid usually just enables the decision maker to re-make the decision (but in compliance with the law the second time around).

Sometimes it is not possible to resolve a dispute and litigation is the only option. Connor & Co Lawyers can assist you with resolving any disputes and representing you in litigation.

Amanda Johnstone
Connor & Co Lawyers


About Connor & Co Lawyers

We are a Law firm located at Level 5, 50 Margaret Street Sydney NSW 2000 specialising in Business law, Banking & Finance, Dispute Resolution, Litigation and Environment & Planning matters.

Email: Website: Phone: 0292996696