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What To Do When You Are In a Dispute With Someone
27 November, 2019 | Nathan Tetzlaff
1. Like death and taxes, disputes are an unavoidable part of life. A “civil dispute” is generally one about money or property, rather than criminal offences. Civil disputes include (but are not limited to) breach of contract, non-payment of a debt, and tenancy problems.
2. Most people face civil disputes sooner or later, but not everyone gets an outcome they would like. So how can you increase your chances of coming out of a civil dispute unscathed?
The first steps
3. Don’t panic, and don’t admit to anything!
4. There are lots of ways we can help you to get the outcome you want. The first and most important step is to come have a discussion with us. It’s natural to want to explain, and to defend your position. But doing this before talking to us may harm your case long term.
5. We can consider your situation and let you know whether the law is on your side, and what your best options are. We can also help develop a strategy to present your case in the most effective way, right from the start.
6. The quickest, cheapest and easiest option is to have your lawyers write to the other side. We can explain why you are in the right, and what might happen to them if they continue to be difficult. Sometimes hearing from lawyers is all it takes to get a good result for you.
7. If that isn’t enough, it does not necessarily mean that you’ll have to go to Court. We are experienced in a range of quicker and cheaper options, which can still be highly effective.
8. These include:
We enter discussions with the other side (or their lawyer) to try to arrange a sensible outcome.
The parties and their representatives meet but have a mediator present to direct discussions in a way that is helpful.
In some situations we can send notices or demands that require a response. Examples include a Privacy Act request for copies of personal information, and a statutory demand against a company where there is an undisputed debt due. Failure to respond within the time frames may be an offence or provide you with additional options and leverage.
Getting assistance from third parties
9. Sometimes a third party can be involved. In insurance or banking disputes an Ombudsman may be able to intervene. If you are being harassed online, you can involve Netsafe. If your workplace is unsafe then WorkSafe can be notified. If someone has breached your privacy or used your information inappropriately, the Privacy Commissioner may investigate.
10. If there is a government body who will be on your side, we can put you in touch with them and smooth the process of making a complaint.
Alternative Dispute Resolution
11. Negotiation and mediation are both examples of alternative dispute resolution (“ADR”), but these are both voluntary processes to try to reach agreement. There are other forms of ADR which can result in a mandatory and enforceable outcome.
12. The primary form of mandatory ADR is adjudication. This is where an independent person reviews the situation and decides. It’s like the Court, except that the arbitrator does not need to be a Judge or lawyer, and the arbitrator and parties can agree on the process used.
13. The advantage of arbitration is that it is much quicker than going to Court. This can make it cheaper as well. The parties can also ensure that the person chosen as arbitrator is someone who understands the industry. This is especially important in disputes that deal with very technical subjects like engineering. Arbitration with an area specialist is sometimes known as “expert determination”.
14. If voluntary ADR fails, the terms of ADR can’t be agreed, or it isn’t appropriate for some reason, a civil dispute can still be referred to the Courts.
15. If the amount in dispute is under $30,000 the Disputes Tribunal has jurisdiction. This is a very cheap and relatively quick way of resolving a dispute (although it may not be suitable for more complex matters).
16. In appropriate cases the Employment Relations Authority, Motor Vehicle Disputes Tribunal or Tenancy Tribunal may have jurisdiction.
17. Some Tribunals limit the circumstances where you can be represented by your lawyers, however we can still advise you and prepare documents ‘behind the scenes’.
District Court or High Court
18. Going to the District Court or High Court is the ultimate form of dispute resolution. The procedure is slow but very thorough, and any technical legal or factual issues will be fully explored and considered.
19. We can assist you at every stage of the Court process. We advise you on the law and strategy, prepare your documents, attend conferences, help to prepare you to present your evidence, and conduct the hearing on your behalf.
20. In any civil dispute there are a range of options to help you achieve the best outcome, considering the time and costs involved in the different processes.
21. Disputes don’t work on a ‘one size fits all’ basis. If you find yourself in a dispute, come see us so we can develop a strategy that works for you.