If a dispute arises, Holley Nethercote Commercial Lawyers can assist your business from beginning to end. We also help businesses in choosing the best avenue for resolution. This may be through:
- litigation, or
- an alternative means of dispute resolution.
Litigation
What is litigation?
Litigation is the process of bringing a legal dispute to court. Depending on the size of the claim, the action will be brought in either the Magistrate's, County or Supreme Courts. Disputes under federal legislation are determined by the Federal Court. The party bringing a civil claim (as opposed to a criminal prosecution) is known as the plaintiff and the opposing party is termed the defendant. The matter may be adjudicated by a judge or jury, depending on the nature of the claim.
How can we help?
At Holley Nethercote, and also through our associated business, Compact - Compliance and Corporate Training, we strive to keep our clients out of court.
But Holley Nethercote is also able to help if things turn "pear-shaped". We will quickly evaluate the problem and advise on the best approach. Holley Nethercote acts for businesses in litigated matters in Victoria and is happy to refer them to firms in other states, if necessary. Grant Holley, partner, spent nine years at the Victorian Bar before Holley Nethercote was established and acts as in-house Counsel in many of these matters. This gives our litigation clients the advantage of Counsel's involvement from an early stage.
With a long term perspective in mind, we also aim to identify and find solutions to systemic issues that lead to disputes, such as poor corporate governance, staff training and contract management.
Alternative Dispute Resolution
Alternative dispute resolution or 'ADR' is a name for several dispute resolution processes and techniques, including negotiation, mediation and arbitration. These methods are alternatives to litigation and can be less time consuming and more cost-effective than going to court. Additionally, relationships can be preserved through processes fostering cooperation and compromise, rather than the traditional adversarial means of dispute resolution.
We offer comprehensive negotiation, mediation and arbitration services. We can provide a mediator or arbitrator or we can assist you to arrange a mediation or arbitration and act for you on your behalf during the process.
Partner Grant Holley is a fellow of the Institute of Arbitrators and Mediators Australia. He is a graded arbitrator and accredited mediator.
Grant has also conducted various courses for the Institute of Arbitrators and Mediators Australia.
Some types of dispute resolution are defined below:
Negotiation
Negotiation is the process whereby the disputing parties resolve the conflict between themselves without the facilitation or arbitration of a neutral third party. Each party is usually represented by a skilled negotiator who advocates the most favourable outcome possible for that party. A "successful" negotiation is when the negotiator is able to obtain all or most of the outcomes his or her party desires, but without driving the other party to permanently break off negotiations. Whilst the outcome is not legally binding, an agreement between the parties can be committed to writing and signed, to create an enforceable contract.
Mediation
In mediation, a neutral third party (the 'mediator') attempts to assist the disputing parties in finding a resolution to their problem. The mediator facilitates negotiations between the parties but does not adjudicate the dispute in any way. Although the mediated outcome is not legally binding, agreements between the parties can be committed to writing and signed, to create an enforceable contract. Mediation can be voluntarily initiated by the parties or ordered by the court.
Arbitration
Arbitration is a process whereby the parties to a dispute agree to submit their respective positions to a neutral third party (the 'arbitrator') for resolution. The arbitrator will hear both sides of the dispute and will make a legally binding ruling. Arbitrators have greater leeway in such matters as: active participation in the proceedings, accepting evidence, questioning witnesses, and deciding appropriate remedies. Arbitration can be voluntarily initiated by the parties.
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