Five fast and inexpensive dispute resolution methods that don’t involve courts

Disputes are a part of doing business and while some sectors and industries like construction, have a higher number of disputes than others, resolving a business dispute can be stressful, expensive and a drawn-out process. 

In some states, waiting times to have matters heard in state tribunals have blown out with even the most urgent cases taking months, rather than weeks to be heard. In Victoria for example, there are around 30,000 cases waiting to be heard at VCAT. Courts across the country too, are experiencing delays, but are slowly returning to pre-Covid backlog levels. 

However, if you’re looking to have a matter solved quickly, fairly, and in a more affordable way, alternative or informal dispute resolution is becoming a more popular option.

Not every dispute is the same though, so it’s worth considering which of the five most common dispute resolution processes best suits you.     

Adjudication

Adjudication is a dispute resolution process under the Security of Payment legislation for building and construction industry participants to help resolve disagreements about payment claims and money owed. It’s a quick, cost-effective alternative to court.  The legislation is similar in each state and territory.

When parties are in dispute about an amount owed for construction work, the claimant can lodge an application for adjudication. Your application can be referred to an adjudicator to make a decision about the disputed payment claim. Most commonly adjudicators rely on documents prepared and submitted by claimants and respondents, and adjudicators determine matters within strict time limits. The adjudicator’s decision is enforceable in a court.

Arbitration

Arbitration can help to resolve a wide range of disputes including commercial, business, family, personal injury, industrial relations matters and construction. The proceedings are overseen by an arbitrator (rather than a judge or magistrate), who considers the evidence and arguments presented by the parties, and hands down a decision known as an arbitral award.

This decision is legally binding and generally enforceable in court. 

Mediation 

Choose mediation when you want to consider all the disputed issues, develop options to resolve each issue, and with the other participant(s), decide on an outcome. Mediation lets participants make agreements to meet the needs and concerns that are important to them. These discussions and outcomes are confidential. Agreements can be legally binding depending on what the matter is and what the participants decide.

It is an informal, fast, and effective process and can be used to resolve a wide range of disputes including business, commercial, family, workplace, compensation, insurance, construction, and community. A mediator does not give advice or an opinion, unless the participants request it as part of the agreement with the mediator. A mediator does not make a decision, it is the participants who decide the outcome.

Conciliation

Conciliation is a dispute resolution process in which the disputing parties are brought together and, with the assistance of the conciliator, have discussions with the conciliator jointly or separately about key issues for the purpose of resolving their dispute. The process is conducted under and in accordance with legislation or other binding rules which place obligations on conciliators and the disputing parties to comply with the norms and standards required by that context.

Conciliations are non-determinative. If the process does not achieve a resolution, the matter typically proceeds to a determinative process, either that is legislated or governed by another binding rule. 

Expert determination 

Expert determination is a process where an independent expert makes a legally binding decision on the issues referred to them for determination. It’s one of the most efficient dispute resolution processes — especially for large or small disputes involving legal/and or technical matters.

Expert determiners are highly-credentialled in their own professional fields and rigorously trained dispute resolvers. Expert determination is fast, cost-effective, and efficient and is a flexible process that can be tailored to suit most types of disputes.

By Amber Williams, CEO of The Resolution Institute.