Draft advice ADR - Grade: 70/100 PDF

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Our ref: 234875

VIC LAW 29th August 2016

Jules 6/459 Little Collins St, Melbourne VIC 3000 Dear Jules I am replying to your inquiry about advice regarding pre alternative dispute resolution processes in relation to your case. In this letter we will confirm your understanding of the circumstances surrounding the dispute, and outline the options regarding ADR that are available. The facts of the dispute stated are:       

You currently own Perfect Paving as a private business You agreed upon paving Lauren’s driveway, a potential client Lauren requested the pavement be undertaken in a speedier timeline than usual Months after the job, Lauren complains of cracks appearing in the pavement Communication between yourself and Lauren was of poor quality as a business card was left for Lauren whom failed to call back You determined the pavement had had heavy machinery operated on and had heavy use Lauren argued she will go to VCAT and claim for a refund

Based on the facts you have given, the job was done adequately to standard and the damage was caused by Lauren not taking care of the paving with the pamphlet you supplied. Lauren argues that she will take the case to VCAT and claim for a refund under poor quality of work The first possible process suitable in your circumstance would be Mediation. Mediation is a process used in Alternative Dispute Resolution in order to solve an issue between two parties, that are looking forward to solving it before taking it to court1. The process is regulated by a third party called the mediator, which is responsible of controlling the mediation and helping both parties reach a resolution. The mediator is always neutral and their main purpose is to make both parties communicate the problem and what they are looking for in order to solve it. The second possible process would be Arbitration.

1 Tania Sourdin, Alternative dispute resolution (Thomson Reuters, 5th ed, 2016) 1

Arbitration2 is also a process used in Alternative Dispute Resolution in which the parties discuss their dispute to a third person, in this case the arbitrator, who is in charge of trying to find a solution for both parties. In this process both parties are represented by their lawyers who are in charge of informing the arbitrator about the dispute and about what both parties are looking for. After listening to this, the arbitrator is in charge of reaching a resolution that will be dictated a few days later. Having a Best Alternative to a Negotiated Agreement (BATNA) is crucial, in your case you could consider yourself having the options of both mediation and arbitration and having Lauren at fault. The worst alternative to a negotiated agreement (WATNA), you would consider this as having to go to court where your business will be scrutinised. Mediation, an informal resolution involves an impartial third party who overlooks the process and allows both parties to communicate. The benefits of this process includes a faster resolution as the issue can be solved in a couple of hours as both parties are only required to negotiate an agreement. It is also cheaper for you as the court process is expensive and can exceed benefits and no fees are required for lawyers. It is also an informal process meaning you will feel less intimidated. Since the procedure is informal and there are no strict rules then you are able to find the best possible solution that suit your interests. Lastly mediation guarantees privacy as cases are kept confidential and are not made public record. The limitations include no court remedies if the opposing party does not abide by their agreement. The other party can also decide they do not want to do their part as agreements are not legally binding. Mediation also has no formal discovery process meaning confidential confessions cannot be disclosed in the case therefore one party is able to keep important information hidden. Arbitration is a formal dispute resolution process which involves an independent third party who makes a legally binding decision based on the facts. The benefits of arbitration include a faster resolution as arbitrators do not have a heavy schedule as courts, and can even see 2 witnesses in one sitting. It is also confidential meaning your businesses reputation for ‘Perfect Pavement’ will not be affected and you will not lose clients. The limitations however include a limited ability to appeal as the arbitrator’s decision is legally binding. It also means confessional admissions cannot be used and one party can get away with the wrong doing. your confidentiality is key in this case as this process ensures all information is kept confidential and cannot be released or made public. This means your identity and business are protected from being cast in a negative light. This also means any confessional admissions you make cannot be used against you, however if Lauren decides to confess to the wreckage of the pavement then that will be kept confidential and you may be at a disadvantage. Another consideration is admissibility, this means all confessional admissions of both yourself and Lauren cannot be admissible as evidence. This means the opposing party can get away with their wrong doing. In mediation especially all evidence is simply the facts that you present yourself which will be admissible. However, in arbitration evidence is not admissible 2

Resolution Institute, Resolving a dispute .

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Arbitration,

Resolution

Institute

Australia

under sworn oath therefore there is no accuracy. Only the legal facts will be admissible and the evidence given in by witnesses. The process that we recommend would be Mediation in this case. In order to be prepared and receive exceptional results in this process, you should consider the following recommendations:         

Understanding the dispute and what Lauren is claiming for Be truthful to your standards and what you are looking for Being truthfully honest Understanding Laurens point of view Try to think about the possible answers or questions the other party is going to use always think before you speak as this can be used in court at your disadvantage Keep calm and never offend the other party Never say you agree with something if you are not 100% sure about it Try reach a solution that best suits both of you

Lastly, we hope this answers all your questions. Another fact to remember is that if you do choose to go through arbitration the decision will be binding and you have slim chance of appeal. Do think about what is in your best interests and what is best for the reputation of your growing company.

Yours sincerely, Vic Law Queen Street Associates Ph: 9522 4567 E: [email protected]

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BIBLIOGRAPHGY A Articles/Books/Reports

National Paralegal, Advantages and disadvantages of Mediation, National Paralegal College . Repa, Barbara, Arbitration pros and cons (2016) Nolo . Resolution Institute, Resolving a dispute Arbitration, Resolution Institute Australia . Sourdin, Tania, Alternative dispute resolution (Thomson Reuters, 5th ed, 2016)

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