Legal and mediation professionals say Australia’s system of alternative dispute resolution for small business disputes needs an urgent and significant overhaul.
They say there’s an over-reliance on the courts to resolve disputes, and it’s taking years for a decision and draining unnecessary thousands of dollars in costs.
Professionals are calling for innovative ways for business disputes to be heard and decided without the courts’ involvement and there’s growing support for a unique Australia-wide dispute resolution service that avoids the courts and could cut thousands from legal costs.
OutOfCourt.com.au has been launched to address a growing need in the community for an alternative to lawyer driven- court determined decisions.
Brisbane barrister Andrew Musgrave says it’s the way to go now, with parties who can’t reach an agreement putting their matter before an experienced and independent third party expert, drawn from a panel of specialists and agreeing to be bound by the expert’s decision
“Participants can forget about the Court process and focus on the mediation process. I think this is the future of dispute resolution. The parties agree to use the service, and then OutOfCourt.com.au will put you in the room with the mediator. This is more efficient than going to Court and finding the Court sends you to a mediator anyway” he says.
Melbourne Chartered Accountant, Arbitrator and Accredited Mediator John Rundell endorses the concept, saying, “Why would you spend sometimes years in the public forum of the Courts where your staff, customers, suppliers and competitors can see your dirty linen displayed in public?
“Further court processes can take years before a judgment is handed down; you have no choice over who will hear your case. Arbitration and Mediation can often achieve a final outcome sometimes in under six months in most disputes.”
OutOfCourt.com.au is the creation of experienced Brisbane commercial litigator Nicole Murdoch who is also Principal with Brisbane commercial and intellectual property law firm EAGLEGATE Lawyers. She has run numerous cases through the Courts and seen the effects of long winded, expensive Court cases on parties in dispute.
“The process could shave years off some legal fights and save participants many thousands of dollars in court and legal fees,” she says.
For small business clients there’s the added advantage of being better able to manage the costs and the timeframes involved.
Andrew Musgrave says since at least the 1990’s mediation and other methods of alternative dispute resolution have been a real focus of the Courts. This is because of an increasing realisation that the costs and time delays in traditional litigation makes going to Court simply too expensive for the average person.
“To my mind mediation and arbitration are really the future for dispute resolution, even commercial disputes. Private Arbitration has always been available to people who find themselves in a dispute. These days it is most often used for
“Once a dispute moves into litigation the parties really lose control of the outcome. They are locked in. The resolution is now in the hands of the Judge and that means someone will go away unhappy. Sometimes everyone goes away unhappy. The lost time, energy and money involved in a Court dispute can be debilitating for everyone,” he says.
Murdoch says the intention is to bring alternative e dispute resolution (ADR) services into the mainstream so parties are aware there is an alternative to the Courts.
“Clients can still engage legal representatives or alternatively, they can argue their case themselves. For small business clients there’s the advantage of being better able to manage costs and the timeframes involved” she says.
The Brisbane-headquartered service is being offered Australia-wide, with a presence in Sydney, Melbourne and Perth and is built around panels of experts in specific fields who individually assess disputes and make decisions on them.
Panelists include experienced senior counsel, independent arbitrators, mediators and successful professional business people in various professions and trades.
The service is also encouraging professionals in dispute resolution fields to come on board as panellists to resolve disputes between parties.
John Rundell says a benefit is that Arbitration and Mediation is a confidential dispute resolution process that can get a contractual or commercial dispute resolved in a timely and cost-effective manner.
In Arbitration the arbitrator makes a reasoned decision on the issues in dispute. The process is binding. Mediation is a more collaborative approach whereby a mediator agreed to by the parties helps find a resolution in the interests of the parties and helps find a way to bring about a resolution
Murdoch says not all matters are suited to Court intervention.
“Clients simply want decisions made in a matter so they can get on with business and their lives. They aren’t interested in setting new law, they just want the law applied so they can get back to business,” she says.
“This especially appeals in cases where people want a discrete outcome that avoids courts whose decisions are generally published.”
OutOfCourt.com.au is also developing a comprehensive and secure online platform to facilitate the ADR process. An online ADR system must provide a full service, robust, scalable and secure online case management platform.
The platform will allow secure e-filing of disputes, communication between the parties, evidence filing, calendar management, a full digital file, dashboard and online video conference facilities.
The service’s website at https://outofcourt.com.au/ contains full details of OutOfCourt.com.au and people wanting to use the service can also access it by calling 1800 OutOfCourt or via email to [email protected]