Dispute Resolution: How to Resolve Your Legal Dispute
Disputes – they happen so often and for so many reasons. Yet sometimes, the dispute will cause an individual, business or organisation to suffer some kind of loss, be it financial or reputational. If so, the dispute may actually become a legal matter, where the complainant pursues a civil claim for damages.
Some of the most common types of legal dispute are:
• Contract disputes
• Commercial disputes
• Probate disputes
• Construction disputes
Almost all of us have entered into some kind of contract in our lives, whether with an employer/employee, a business, a supplier, a construction company, an insurer or otherwise. If one party fails to meet the terms of the contract, it may pave the way for legal action. Contract disputes most commonly relate to:
• Breach of contract
Breach of contract
When entering into a contract, each party is legally obliged to adhere to the terms set out in the document. If one party breaks the terms of the agreement, it amounts to a breach of contract. This may be done knowingly, or the terms of the contract may be ambiguous, making them open to interpretation.
Disputes can also arise if one person enters into a contract, knowing they will not be able to fulfil their side of the bargain. This is known as misrepresentation. If this causes financial damages, there could be grounds for legal action.
Commercial disputes have increased considerably in recent years. So much so that the government established a new court – called the Commercial Court – to deal with business disagreements. This includes:
• Disputes between businesses where the value of the claim is at least €1 million
• Proceedings under the Arbitration Act with a value of at least €1 million
• Disputes about intellectual property
There are plenty of other types of commercial dispute that fall outside of the scope of the Commercial Court. These are dealt with in the traditional way. If litigation in necessary, then the dispute may be heard in the Smalls Claims Court, Circuit Court or High Court.
Disputes between businesses
Businesses may face disputes with other businesses, with the government or even from within. Examples of business disputes include partnership disputes, shareholder disputes, business succession disputes, disputes with suppliers and insurance disputes. This is certainly not an exhaustive list and there are many more examples. Whatever the cause of the grievance, it is vital that it is resolved quickly and effectively, or the business’s bottom line could be hit.
Proceedings under the Arbitration Act
Sometimes those party to a commercial dispute will be contractually obliged to resolve the matter by way of arbitration. This will be the case if an Arbitration Agreement exists. The courts can intervene if there is some fundamental error of law during the arbitration process, or errors in the procedure.
Disputes about intellectual property
Trade marks, patents and copyrights are all types of intellectual property. A company is entitled to take legal action against anyone who is infringing their intellectual property rights.
The death of a loved one can cause bitter in-fighting and legal battles between friends and family members. These disputes occur during Probate, which is the process of proving a deceased person’s Will (if there is one) and administering their estate. Probate disputes typically arise due to one of the following reasons:
• The actions of the personal representative are called into question
• There are concerns regarding the validity of the Will
• Proper financial provision has not been made
Has the executor acted negligently?
When someone dies, a personal representative is appointed to manage their final affairs. This person is either appointed by the deceased in their Will. Or, if there is a no Will, the deceased’s next of kin is appointed instead.
Personal representatives must act in the best interests of both the estate and the beneficiaries. Sometimes, the personal representative will fail to meet their duties, neglecting to administer the estate in an accurate and timely fashion. There may also be more sinister allegations of fraud or stealing from the deceased’s estate.
If there are concerns over the personal representative’s actions (or inactions, as the case may be), the beneficiaries are entitled to pursue legal action.
Are there concerns over the validity of the Will?
Questions may be raised as to whether the deceased was of sound mind when he/she wrote their Will. This is becoming an increasingly common problem with the rise of dementia and Alzheimer’s Disease.
If the deceased was not of sound mind at the time of making their Will, then the Will must ultimately fail. The same is true if the deceased was put under undue pressure when writing their Will, as he/she may have been influenced to name or exclude certain beneficiaries.
These kinds of claims can be hard to prove – but it can be done. If the deceased changed their Will during the final stages of their life, and they were experiencing cognitive difficulties, then the dispute will have a solid legal basis.
Has proper financial provision been made?
The contents of the deceased’s Will may come as a surprise to certain people. Some may have been left out altogether, or received a much smaller share than they feel is right. Alternatively, it could be that the deceased failed to make a valid Will, meaning an unmarried spouse is not provided for under the intestacy rules.
If proper financial provision has not been made, or if the deceased failed to uphold a promise made during their lifetime, then the Will may be challenged. This will halt the process of Probate and estate administration until the issue has been resolved.
Construction disputes happen in both residential and commercial settings. Such disputes can be incredibly varied in nature, but most commonly relate to:
• The quality of the work
• Delays in the project
• Contractual disputes
Is there a dispute over money?
There may be a discrepancy between what a tradesperson charges, and what the customer thinks they owe. This is particularly true in the residential sector, where customers often recruit tradespeople without drawing up any kind of contract. Usually, there is simply a verbal agreement as to what works should be carried out. The problem is that this can change over time, which is then reflected in the final price. However, this may not have been agreed between the parties.
Disputes over money can lead to a stalemate where neither party wishes to back down. This is understandable from both points of view. On the one hand, the contractor feels he/she has carried out a service and deserves to be properly remunerated for it. On the other, the customer feels they are being ‘taken for a ride’ and have been unfairly charged.
Are there concerns regarding the quality of work?
A customer may take issue with the quality of work that has been completed by a tradesperson. If the customer feels the work falls below a reasonable standard, they may request remedial repairs, a discounted bill or money to cover the cost of the damage. There may even be claims of professional negligence. The tradesperson may deny these allegations, or at least dispute the expense that is being claimed.
Were there delays in the project?
Alternatively, it might not be the standard of work that is called into question, but rather the time it took to complete. Delays in construction can cause developers and homeowners to suffer losses. If a contract sets a deadline which contractors fail to meet, there could be penalties.
Contractual disputes in the construction industry
Contractual disputes will arise if one party breaches the terms of the contract – as with a delay in completion. Or there may be confusion as to the contractual rights and obligations of each side.
How to resolve a dispute
If you are faced with a legal dispute, then what exactly can you do about it? There are six main methods of dispute resolution:
Negotiation: Sometimes, the simple art of negotiation is all it takes to resolve a dispute. The problem may have occurred due to a misunderstanding, or the other party might even be ‘calling your bluff’. Ask a solicitor to negotiate on your behalf – it is surprising how many disputes can be settled with a letter or phone call from your legal representative.
The advantage of negotiation is that it’s quick and inexpensive. The downside is that you might not feel comfortable negotiating with the other side, although you can always ask our solicitors to do this for you. Furthermore, the other party might not be willing to relent, meaning negotiations are ultimately unsuccessful. Negotiation is suited to all kinds of disputes. Whatever the nature of the conflict, negotiation is a wise place to start.
Conciliation: Conciliation is when both sides meet with a conciliator, who is an independent third party. The conciliator guides discussions between you, in the hope that you reach a mutually agreeable solution. If this does not happen, the conciliator proposes a resolution instead. This can be accepted or rejected by either side.
The advantage of conciliation is that it is fast and inexpensive compared to litigation. The discussions are confidential and limit the level of conflict between you. However, either side is entitled to reject the conciliator’s recommendations, meaning the process will fail if one side is unwilling to co-operate.
Conciliation is best suited to construction disputes. Many construction contracts now state that conciliation must first be attempted, in the event of a dispute. A failure to comply with this obligation could work against you, should your case end up in court.
Mediation: Mediation is very similar to conciliation, in that both parties meet with an independent third party, who in this instance is called a mediator. The mediator encourages meaningful conversation between you, guiding you towards a resolution. If you cannot reach an agreement, the mediator will not offer their own recommendations, as with conciliation.
The advantage of mediation is that it is often successful. It is also confidential and more cost-effective than other forms of alternative dispute resolution. But like conciliation, mediation will not achieve favourable results if one party refuses to engage with the process.
Mediation is a popular form of dispute resolution that is suited to all types of disputes. The courts may demand that you at least consider mediation first, before taking your dispute any further.
Arbitration: Arbitration is when the dispute is heard by a specially trained arbitrator. This person will be a specialist in the field relevant to the dispute. The outcome will be decided by the arbitrator, whose decision is final and binding.
The advantage of arbitration is that it is private, with both parties and the arbitrator obliged to keep proceedings confidential. It is generally less expensive and faster than litigation. The parties may also choose the arbitrator and the evidential/procedural matters to be followed. However, control is relinquished to the arbitrator, who will decide the final outcome. This can only be challenged if it is in the interests of justice, meaning there was a fundamental error or law or procedure.
Arbitration is most common where the parties have entered into a contract which contains an arbitration agreement. This means arbitration is typically used to resolve contract, commercial and construction disputes, amongst others.
Adjudication: Adjudication is when a dispute is referred to an adjudicator. This person will consider the details before deciding an outcome.
The main advantage of adjudication is that it’s incredibly fast. Following their appointment, the adjudicator has 28 days to reach a decision. This can be extended to 42 days if both parties agree. However, the speed at which a case is settled can also be seen as a disadvantage. Also, the adjudicator’s verdict can be overthrown by an arbitrator or judge, although the decision must be obeyed pending further proceedings.
Adjudication is only suitable in construction disputes, specifically where a payment dispute arises under a construction contract.
Litigation: If the other forms of dispute resolution have been exhausted, the final option is to pursue the matter in the courts. The exact process will depend on the nature of your dispute. If your case is heard by a judge, he/she will make a final ruling.
The advantage of litigation is that you may obtain an award greater than that achieved via mediation, for example. You also do not have to rely on the co-operation of the other side, something which will be difficult if talks have broken down. On the flip side, litigation is more combative and can damage the relationship between the parties. This could be problematic if you intend to do business together in the future.
Litigation is suitable in all types of dispute, so long as alternative methods of dispute resolution have been explored first. Otherwise, the judge may refuse to hear your case. Additionally, you must be prepared for a ‘win’ or ‘lose’ scenario. This means you should only pursue a claim if you are confident of succeeding. A loss could prove to be expensive.
Which option is right for me?
Different disputes lend themselves to different forms of dispute resolution. There is no ‘one size fits all’ approach. That is why it is important to seek expert legal advice from a solicitor at the earliest available opportunity. Once we have confirmed the details of your dispute, we will outline the best strategy in your individual case. It may be a matter of trying various forms of dispute resolution, starting with negotiation, then mediation and finally litigation. Or, we may recommend proceeding straight to arbitration. We understand that a timely and successful resolution are your priorities, and will work to achieve this on your behalf.
Dispute resolution solicitors
If you are currently in the midst of a dispute, contact us now at Gibson & Associates. We deal with all types of dispute, including Probate disputes, contract disputes, commercial disputes, construction disputes, insurance disputes and boundary disputes.
Complete our online enquiry form, or phone us on 01 872 3143 today.
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