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Dispute Resolution & Litigation

If you are involved in a legal dispute, our experienced and skilled negotiators can help. We offer practical and timely advice that has helped Badgery & Rafferty build a strong reputation within the profession as trusted dispute resolution lawyers in Canberra. We promote alternative dispute resolution processes wherever possible and offer mediation, conciliation, and arbitration services for a range of individuals and businesses across various industries.

What is Alternative Dispute Resolution?

Alternative Dispute Resolution (ADR) refers to the various processes used to resolve a legal dispute without taking it to court. ADR processes include negotiation, informal settlement conferences, mediation, facilitation, conciliation, and neutral evaluation. Avoiding litigation can provide many benefits when resolving a legal dispute. Generally, using an ADR process:

  • is less expensive than litigation
  • enables the parties to resolve their dispute quicker than court proceedings
  • is less formal than court proceedings with a lower evidentiary threshold
  • can facilitate more flexible solutions than court orders
  • can help the parties preserve their relationship

Negotiation

Negotiation is usually always the first step involved in resolving a dispute. It involves the parties communicating directly, either speaking with each other or in writing, with the aim of trying to reach an agreement. Often, the parties will engage a legal representative to negotiate on their behalf.

Mediation

Mediation involves a neutral person (the mediator) meeting face to face with the parties to a dispute and assisting them to reach a resolution. The meeting is generally confidential, and the mediator does not provide legal advice nor determine the dispute. Rather, the mediator encourages the parties to explore options to resolve their issues.

Mediation is best used when the parties are willing to negotiate in good faith and make genuine attempts to resolve their matter. Even if mediation does not resolve the entire dispute, it can still be beneficial by identifying and then narrowing down the matters in dispute.

Mediation can be used for a range of matters including highly complex matters where reports by experts may also be used to assist the process.

If an agreement is reached the parties can formalise their negotiations by entering into binding terms of settlement.

Conciliation

Conciliation is a process through 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.

Arbitration

The arbitration process involves parties to a dispute presenting their case to an independent third person (the arbitrator) who generally has expertise in a particular field or area. Arbitration is sometimes used when the methods of dispute resolution have proven unsuccessful and may be effective for a range of legal disputes including industrial relations, contractual disputes, and family law matters.

Unlike mediation, which is a facilitative process, arbitration is determinative. After hearing the evidence presented by each party, the arbitrator will make a binding decision which is like a court order. Arbitration may also be used to determine a specific issue in the context of an overall legal dispute which may lead to more meaningful negotiations moving forward.

With an increasing strain on the court system and a backlog of matters waiting for hearing, arbitration has become an important process to help reduce some of this burden and to resolve disputes quicker and more cost-effectively than proceeding through the court.

ACT Civil and Administrative Tribunal

The ACT Civil and Administrative Tribunal (ACTCAT) resolves certain legal disputes and matters in the ACT. It is less formal than a court and hears and decides cases according to the law. ACTCAT’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 the ACTCAT, it will need to undergo a compulsory mediation session with one of their mediators. If appropriate, the mediator will work with the parties to assist them to resolve their issue on the day of the hearing. This service is designed to be 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 ACTCAT, however, if you wish to have a lawyer represent you, you need to notify the other party beforehand.

ACTCAT orders are treated the same as court orders.

Litigation and representation in court

Legal proceedings can be expensive and time consuming and we strive to provide alternatives. Despite best efforts however, it may be impossible to resolve your matter using alternative dispute resolution and you may need to commence proceedings or defend a matter in court. In such cases we will carefully assess your case and its likely prospects if litigated, so you can make an informed decision. We are experienced litigators with a sound knowledge of court processes, so you can rest assured that you will be in safe hands if court proceedings are necessary.

If you need assistance, contact us at or call 02 6245 6000 for expert legal advice.