Litigation and Dispute Resolution

It is a common knowledge that problems arise day and day out between businesses, the customers, suppliers and partners and other innumerable sources one has to interact in the conduct of commercial transactions. Many of them are equally resolved through the application of common and good sense but it is inescapable for a few of them to escalate into disputes. It is such small percentage of disputes that threaten to wipe the profits arising out of major percentage of non-disputed transactions and it is a logical corollary for businesses look for alternatives to litigation to resolve them both quickly and at least costs. Alternate Dispute Resolution (ADR) is one such tool and is founded on the principle that 'Good Business Management includes Good Dispute Management'.

About Litigation and Dispute Resolution:

Legally businesses have recourse to litigation for resolving disputes, yet, it is considered to be costly, time consuming, create bitterness in business relations, and in terms of outcomes, none of the parties come out as winners.

It is in this context, the Alternated Dispute Resolution, an equally legally recognised tool is supposed to provide the businesses low cost, quick and flexible system of resolving the dispute. The processes seek to produce a 'negotiated settlement' between the concerned parties through methods that encourage common-sense driven practical solutions that at the same equally aims at preserving the business ties and relationships. A neutral party, ordinarily in the form of a 'mediator' interfaces with the parties to arrive at a settlement to the fullest satisfaction of both the parties on which both can agree while at the same time preserving the confidentialities. Thus, it seeks to provide both the parties a total control on the outcomes of a dispute removing the uncertainties litigation brings along with it arising out a court case and judgement. Should the parties not able to arrive at such mutually acceptable agreement, the legal channels are open for them.

Alternate Dispute Resolution depends on case laws for its evolvement over a period of time. Legally, an ADR agreement should contain a minimum list of following issues:

• A Definition of "Dispute'
• A notice period for the commencement of the process, together a defined method for notice
• The procedures to be followed in the appointment of a Mediator including resolving issues like as to who would pay for the mediator, has an authority to negotiate on behalf of the parties
• The location of and  a confidentiality clause for the mediation,
• Requirement for the parties to follow practices of good faith in the process of negotiations
• And
• A confirmation of continued performance of contractual obligations through out the conduct of ADR process.

There are case laws to the effect (e.g. Aiton decision) that a dispute resolution would not be legally upheld if it omits 'an essential requirement'

Types of Litigation and Dispute Resolution:

The major types of disputes that attract litigation but can be resolved through Alternate Dispute Resolution mechanisms are described herein under.

All that disputes that can arise between two parties in relation to ownership of copyright in a particular piece of material which has been classified by one of the members in accordance with a Licence Protocol, regardless of whether license has actually been granted or not.

Any and all that disputes that can arise between a Licensor and Licensee in regard to any issue within the provisions of licensing. This includes but not restricted to royalty fees.

All that could arise out of non-fulfilment of collateral conditions of an assignment under Copyright law.

A dispute that could arise under a Charter between a Company and a Member. This ranges from non-admission of a Charter Member as a member of the company, or pertaining to inclusion of a member in a particular category membership to issues relating to levy of fees.

Example of its application:

Many governmental agencies and commercial organisations, as banks, insurance, telecommunication companies resort to ADR mechanisms. Similarly, government agencies responsible for compliance (say environmental compliance) resort to ADRs to resolve issues through positive negotiations, rather than negative specialisation. In schools under the Schools Conflict Resolution and Mediation (SCRAM) procedures, the students are taught the process and skills of mediation. In this regard, Criminal Justice System is getting into the mode of Restorative Justice (RJ) to compassionately handle juvenile issues.

Finally, a specific example how it works in the family courts is furnished below:

In Australia, the current legislation makes it mandatory to participate in 'family dispute resolution' for separating couples involved in parenting disputes. This is done with a view to encourage them to arrive at their own agreements about the arrangements for their children, before they seek the assistance of family courts in ordinary circumstances. This is reflected in the Federal Government’s approach to encourage affected persons to 'take responsibility for resolving disputes themselves in a non-adversial manner’. This is despite the fact that 'Family Dispute Resolution' is loosely defined in the Act wherein it does not go beyond stating that it is a 'process that is outside a judicial process'. In these cases, Mediation is the key process that is applied as against arbitration in commercial disputes.

The cost of civil litigation poses a serious challenge in the management of contemporary dispute resolution. There are quite a few controversial issues that crop up in this regard. For instance, there is lot of debates on the ways in which the solicitors assess legal costs, should it be assessed on a scale, time costing or lump-sum basis. In the context that the proportion which legal costs bear to the litigation and the amount involved in a dispute are critical issues, Alternate Dispute Resolution acquires not only importance but a tool of immense utility. Nevertheless, the development of Australia as a nation demand greater uniformity in relation to procedures