Dispute Resolution

Common forms of dispute resolution include:

• Exchanging letters.

• A meeting between senior representatives of each party.

• Attending a mediation or conciliation, where the parties sit in the same room with an independent facilitator. While these processes can be very formal, in many settings they can be conducted informally.

• Making a complaint to an independent body. This might be Fair Trading, an Ombudsman, or a Human Rights Commission. The body can then direct the parties to undertake mediation.

• Arbitration, adjudication, and other formal processes for independent assessment under contract or statute.

What is interests-based negotiation?

If two people disagree, a good starting point is to ask “Why?”

According to the Harvard Law School Program on Negotiation:

An interest-based negotiation is one in which parties share the interests that underlie their grievances and try to jointly negotiate a solution that satisfies all parties.

Interest-based negotiation, or integrative negotiation, involves exploring the deeper interests underlying parties’ stated positions to identify potential tradeoffs and win-win opportunities across issues and interests.

Interests-based negotiation has its genesis in international diplomacy. It underpins any good negotiation strategy. If parties collaboratively explore their mutual interests, this is the shortest path to the best possible outcome. In the context of dispute resolution and adversarial litigation, this might mean that parties walk away mutually unhappy, but still better off than if they sue each other to the bitter end.

Interests-based negotiation can be contrasted with positional bargaining. In positional bargaining, each party takes an extreme and entrenched position. This approach relies on the other party submitting to minimise their costs and exhaustion.

Glossary of Terms

Admissible evidence
Material that adheres to the rules of evidence of a court or tribunal. 

ADR
This is an acronym for “Alternate Dispute Resolution.” It can refer to mediation, conciliation, and other processes that are intended to lead to the parties agreeing on an outcome, or for a person who is not a judge to decide the disagreement. In litigation, a Court will often direct that the parties engage in ADR before the matter progresses to a hearing.

Affidavit
A sworn or deposed statement that is made in writing. It has the same weight as though the deponent has given oral evidence in court, and is treated with the same degree of solemnity. The form of the affidavit must adhere to the rules of the relevant court. In the ACT, those rules require in-person signing of affidavits.

Appeal
A specific type of litigation, that is an application to a court that has the power to change a decision made by another court.

There is a hierarchy of courts. A court that may be appealed from, is often referred to as a “lower court” as it is lower in the hierarchy than the court that may be appealed to.

Barrister
Barristers are independent, specialist advocates who are trained to appear in a courtroom, in commissions of inquiry and in alternative forms of dispute resolution. Barristers may also provide objective advice on particular legal problems for clients, solicitors, businesses and governments. Barristers act as mediators and arbitrators as well as conducting other dispute resolution processes.

In your legal matter, Apollo.Law will engage a barrister to settle court documents and be your courtroom advocate.

Per usual practice, you will communicate with your barrister through your solicitors at Apollo.Law 

Calderbank Offer
An offer to settle a dispute, that includes specific legal wording. The Calderbank Offer can be relied on by a party to be awarded costs, even if court makes findings against that party.

Cause of action
The legal term “cause of action” means a legal basis for a person to make a claim against another person. If there is no cause of action, this means that there is no legal basis to go to court.

Common law
A type of law that has its origin in court decisions rather than legislation. “Torts” such as negligence have their origin in common law, which is one reason why common law remains relevant today. 

Costs
Typically legal fees and disbursements attributable to the claim.

When an offer to settle a matter is made, an offer to pay money “plus costs” refers to costs as assessable under the applicable court rules. Often this is less than the money that a party has paid.

Conditional Costs Agreement
Colloquially known as “no win no fee”, under a conditional costs agreement a client only becomes liable for their lawyers’ professional fees when certain conditions are met. Typically, that condition is an offer to settle from the other party that is within the range recommended by Counsel.

Contingency fees and Contingent Costs Agreements
Contingency fees refer to a law firm setting their fees as a percentage of the sum recovered from the other party to litigation, or a scale that is based on the actual amount recovered from the other party.

Contingency fees are prohibited in Australia. When permitted, contingency fees acted as a disincentive to lawyers settling matters. Instead, firms will often set their fees with reference to the court’s relevant Scale. Apollo.Law provides its clients with a fee card, and with regular fee estimate updates through Costs Disclosure Statements.

Costs Agreement
A contractual document between a law firm and a client that sets out each party’s respective duties. The content is often prescribed by law. A client is permitted to negotiate the terms of a costs agreement before accepting it. A law firm is not obliged to renegotiate the costs agreement after it has been signed.

Costs Disclosure Statement
A document given by a law firm to its client that provides fee-related information. The content is prescribed by law. Unlike a Costs Agreement, the law firm is obliged to update the Costs Disclosure Statement from time to time.

Counsel
An expression that refers to a Barrister. For example, “Jo Smith of Counsel” refers to a barrister named Jo Smith.

Directions
The term can refer to either: (a) when a court or tribunal makes procedural orders; or (b) an occasion when parties attend court for the purpose of determining procedural orders that need to be made.

Disbursement
An amount paid or payable to a third party. For example, a disbursement for payments to Counsel or an expert witness.

Equitable cause of action, or ‘Equity’
A type of law that has its origins in courts of equity, rather than legislation. Injunctions have their origins in equity, which is one reason that equity remains relevant today.

Expense
In relation to legal costs, amounts that are not professional fees. These can include disbursements, and internal costs like photocopying.

Expert Evidence or Expert Report
Evidence given by an expert witness, or a report written by an expert witness, that adheres to an expert witness code of conduct.

Expert Witness
A witness that has achieved sufficient experience, training and eminence in the field, in that a court will accept the witness’ opinion as fact.

Expert Witness Code of Conduct
A set of rules made by a court, that an expert witness must adhere to when giving expert evidence.

Evidence
Material that can be admitted in a court or tribunal. Not all material is evidence. 

Filing Fee
Fees payable to a court or tribunal to lodge a document.

Hearing
Depending on context, a “Hearing” can mean either (a) any occasion where the parties make submissions to a judge or magistrate; or (b) the final, contested hearing of litigation in front of the judge or magistrate. 

Indemnity costs (in the context of “the court awarded indemnity costs against the plaintiff”)

The entire fees paid by a client to their lawyer (as opposed to “party/party costs” or “scale costs”. Also known as “solicitor/own client costs” or “solicitor/client costs”.

Injunction

An order from a court that a person either do something, or not do something.

An ex parte injunction refers to an injunction being made on the application of a party, without the other party being notified that the injunction has been applied for or present in the court when the order is made.

A party applying for the injunction may be required to offer “Security for costs”. This refers to an undertaking by the party, or payment into court, for the responding party’s legal costs if the responding party successfully appeals. A party that applies for an ex parte injunction is typically required to provide security for costs.

An “interim injunction” or “temporary injunction” is an injunction that is made by a court for a specific time period. That period will typically be until the party that is subject to the injunction has an opportunity to be notified of the injunction, and either consent to or challenge it.

A “final injunction” is an injunction that is a final order by a court. 

Interlocutory application and Interlocutory order
“Interlocutory” is any stage of litigation that is not a final decision.

Medicare and Services Australia statutory charge
In certain compensation maters, Services Australia is entitled to be repaid medicare, welfare, and other benefits that an injured person has received and that are connected to the injury.

Negligence
Used as a legal term, “negligence” refers to a four-step process: Duty of care, breach, causation, and damages.

No win no fee
An expression that is used in law firm advertising, to refer to conditional costs agreements. Apollo.Law will consider conditional costs agreements and pro bono arrangements in appropriate circumstances. 

Party-Party costs
Costs that are calculated in accordance with a court scale applicable to the relevant litigation.

Pro bono
When, in the broader public interest, a firm does not charge professional fees to act for a client who is impecunious. There are various formal definitions of pro bono, including from Pro Bono Australia and the Law Council of Australia, that can be used for firms that measure their pro bono targets.

Registrar (or Deputy Registrar)
A court official who has delegated decision-making responsibilities. In some matters a registrar may exercise functions of a judge (including making directions) or undertake formal mediation duties.

Scale costs

Each court and tribunal has a prescribed scale of fees that applies to solicitors’ work, that is applied if the court or tribunal awards costs. Some subject matter types also have their own scale under legislation no matter which court or tribunal they are litigated. 

Solicitor-Client Costs
See indemnity costs. 

Registry
The corporate function of a court or tribunal. This is where lawyers and the public typically file documents. An ‘online registry’ refers to a specific website where court documents may be filed or accessed.

Stay or Stay Application
A stay is when a court suspends the operation of an obligation that a person has. The obligation may be the obligation to comply with an order of the court or of a different court, or a decision by an administrative decision-maker.

Tort 
A specific type of ‘cause of action.’