Court proceedings may not necessarily be the only, or best, option in trying to pursue a claim, resolve a dispute or settle a legal argument. There are alternatives.
Disputes can be costly, lengthy and stressful. No one wants them but sometimes they can be unavoidable. Things can quickly escalate if someone threatens court action.
Way too many years ago when I was training as a lawyer, court proceedings were the inevitable forum for pursuing a claim or to resolve a dispute. My working day was taken up with issuing court proceedings and attending court hearings for clients.
TIMES HAVE CHANGED
Back in the day, civil court proceedings were slow and expensive, almost always involving lawyers. Now, access to court proceedings is available within minutes at the click of a mouse through the online court system. You can fill in claim forms and issue proceedings 24/7 from home without ever having to visit a lawyer’s office or seek legal representation. However, this brave new world is full of pitfalls and dangers for parties embarking on the issue of court proceedings, in actions which have not been fully thought through or on which no legal advice has been sought. Proceedings become defended, counterclaims raised and costs orders and court sanctions imposed. Proceedings become protracted, expensive and evermore stressful and all started from the comfort of your own home.
Sometimes, court proceedings are not the correct forum for trying to resolve a dispute.
THERE ARE ALTERNATIVES
1. Negotiation. Communicate with the party you have a dispute with and see if you can resolve matters to your mutual satisfaction. A lot of disputes escalate because of a lack of communication or each party failing to understand the other party’s stance. Sometimes communication between the parties themselves can resolve a dispute at a far earlier stage than if one party rushes off to issue court action.
2.Check the small print. Are there contractual terms and conditions that apply between the parties? Do they contain an arbitration clause? Arbitration legislation provides a structure on which disputes can be referred to an independent Arbitrator without recourse to court proceedings.
3. Mediate. Mediation/Alternative Dispute Resolution (ADR) can either be informal by way of a round table discussion between the parties and/or their lawyers or a more formal structured form of Mediation whereby an independent and objective Mediator is appointed between the disputing parties to explore with them a negotiated settlement.
4. Without Prejudice communications. This is a legal expression which means ‘off the court record’ or ‘without admission of liability’. It enables parties to communicate openly and frankly without admission of liability to try and explore a resolution. They are however not magic words. Such communications must contain an offer or counter offer to try and settle a dispute or be part of such communications to be deemed ‘Without Prejudice’. You cannot in normal correspondence simply add the words, ‘Without Prejudice for it to then be automatically covered by the protection of ‘Without Prejudice’ and the correspondence could as a result be disclosable at Court.
If parties reach settlement, then this can be legally binding upon both parties. It is important that any settlement agreed is set out in writing and signed by all parties to the dispute.
Sometimes, attempts at resolution fail and court proceedings may ultimately be the correct action to take to obtain a judicial determination.
But before you click that computer mouse and start legal action, think about things in a common sense and practical way as to how best the resolution can or may be achieved. It is always worth considering, at an early stage, obtaining legal advice as to your options and alternatives available so you can make an informed decision.