What is Alternative Dispute Resolution?

Alternate to dispute resolution

Alternative Dispute Resolution (ADR) is provided for under the Civil Proceedings Act 2011 and encompasses a variety of methods which can result in a binding or non-binding agreement to resolve a legal problem, without having to engage in the costly and often stressful process of Court proceedings. Methods of ADR include: 

  • Mediation
  • Arbitration
  • Expert Determination
  • Conciliation
  • Collaborative Law

What are the benefits of ADR?

There are many benefits to participating in ADR, such as: 

  • Avoidance of lengthy, costly and stressful court proceedings;
  • Allows parties to develop mutually acceptable outcomes;
  • Greater flexibility in negotiations;
  • Greater range of solutions available than that of Court proceedings. 

Which method is best suited to my dispute?

To best determine which method is most suitable for your dispute, it’s important to consider the basis of your dispute, the parties involved, and what the desired outcome ultimately is. For example, you may wish to reach a resolution that can be legally binding on the parties (such as a building dispute), or you simply may wish to reach a resolution and move forward with life (such as a dispute with your neighbour).

Understanding the different methods available will better equip you to making the right selection for you: 

Mediation

Mediation is a popular and highly effective way of resolving your dispute without having to go through the Court process. It’s overseen by an impartial third party, called a mediator whose role is to guide you through a structured process to assist in reaching a resolution. Participating in mediation can save significant time, legal fees and court costs for both parties. It also provides you with an opportunity to have your wishes taken into account, unlike Court proceedings where a Judge or Magistrate is bound to decide your matter based on the legal merits. 

Key Takeaways for Mediation:

  • It is a voluntary process;
  • The Mediator will not make decisions for the parties or give advice;
  • Parties may choose not to accept the agreement if they are unhappy with the terms reached;
  • If you are unable to reach a resolution, you may pursue your matter through court proceedings. 

Arbitration

Arbitration is a flexible and efficient means of solving disputes and is a process that will legally bind the parties. It is a process where each party presents their argument and evidence to an Arbitrator, whose role is to act as a decision maker, and create a binding determination (award). 

Arbitration may be ordered by consent in matters where there are current proceedings before the Court, or if parties agree to attend Arbitration. Disputes which may be suited to Arbitration include financial matters, property settlements and spousal maintenance. 

Expert Determination

Expert determination is a process where the parties agree to have their dispute resolved by an independent third party expert, such as an engineer, accountant, lawyer or valuer, depending on the issue for determination. 

It is a process where the parties agree that the experts decision will be binding upon them, there is no right of appeal and only limited ways in which a party can seek to challenge the experts decision. 

Conciliation

If your disputes involve discrimination in the workplace for example, or related to services, it is most likely that they will be best dealt with by conciliation. It is a process that assists parties identifying issues of dispute and allows the parties an opportunity to discuss possible terms of settlement whilst receiving assistance from the conciliator, who acts as a neutral third party, much like mediation. 

Collaborative Law

A collaborative law approach requires both parties and their legal representatives to specifically agree in writing to reach a settlement without resorting to litigation. Its focus is on parties to actively participate, negotiate and minimise conflict in order to avoid going to court. 

Whilst collaborative law may be used for commercial and civil areas, it’s primary purpose is the resolution of family law matters. 

If you are interested in learning more about any of the above alternative dispute resolution options available to resolve your dispute, contact our litigation lawyers today. Klein Legal also offer mediation services and has a nationally accredited mediator who can assist in resolving your dispute. Contact us today to find out more. 

This is general information only and does not constitute legal advice. 

If you or someone you know would like more information or require advice about anything raised in this article, please contact us on (07) 5458 6855 or email mklein@kleinlegal.com.au 

Commercial Leasing Disputes

commercial disputes, Klein Legal

Sorting out a commercial lease or a commercial lease dispute can be complicated, but with the right advice – it doesn’t need to be. 

In Queensland, there is no such thing as a ‘standard commercial lease’. Different laws and conditions apply depending on the type of business operated at the premises, location of the premises and the length of the tenancy.

It is important for both tenant and landlord to understand and agree to the conditions of a commercial lease and understand their rights and obligations under the lease. A lease that is clearly worded, and seeking advice on any unclear terms and conditions are key in helping parties avoid any ambiguity and will aid in minimising disputes. 

While a lease may seem straightforward, they often give rise to confusion, particularly in respect of renewals, rent increases, rights and obligations. The first step to understanding your lease, is to know what type of lease you require or hold, such as a retail shop lease or non-retail shop lease.

Retail Leases

A retail lease is essentially a lease for a retail shop, such as a hairdresser, clothing or grocery store. The Retail Shop Leases Act (Qld) 1994 (‘Retail Act’) applies to these type of tenancies and cannot be contracted out of. Circumstances where the Retail Act will not apply to your lease, even if you operate a retail business are: 

  • Service stations;
  • Leased premises which has a floor area in excess of 1000m sq and is leased by a listed corporation/listed corporation’s subsidiaries;
  • The lease relates to a temporary business i.e. Trade stalls;
  • The premises are leased from the South Bank Corporation with perpetual leases or leases for more than 100 years; or
  • The premises are within a theme park or amusement park. 

Non-Retail Leases

These leases may include premises for professional services, warehouses, distributors and manufacturers which might be operating a commercial enterprise. 

What are key considerations when forming a lease?

When preparing or reviewing your lease, whether as the lessee or lessor, you should give careful consideration to the following: 

  • Term/tenure – length of lease, options to renew, whether the lease needs to be registered on the Title of the property;  
  • Security – personal/bank guarantees;
  • Letter of Offer/ Intent / Agreement to Lease – do you have an understanding of their terms, your obligations and rights? 
  • Gross Lease or Net Lease – Are there any outgoings not included in the rent?
  • Insurance – What insurance does the lessor take out and what does the lessee need to take out?
  • Assignment – is the tenant and the guarantors “off the hook” if the lease is assigned?

Disputes

There are many ways in which you may find yourself in a lease dispute. Common examples of disputes that arise are that of: 

  • damage to property;
  • failure to pay rent as agreed;
  • failure to maintain the property or return to the state as required;
  • subleasing / assignment of the lease. 

What If I’m involved in a lease dispute?

Depending on the type of lease and the issue, there is legislation to assist in resolving a lease dispute (such as the Retail Act or the Property Law Act 1974 (Qld)). There are several avenues available to resolve a lease dispute, such as: 

  • Notice to remedy breach (if applicable); 
  • Termination of lease (if applicable);
  • Mediation; or
  • Commencement of Proceedings in QCAT or Court depending on the type of dispute and type of lease. 

Next Steps

Leases can be a complicated legal issue to navigate, and it’s one that could cost you significantly if you get it wrong. Whether you are considering entering a lease, are currently involved in a dispute or would like to know what your rights and obligations are at the first sign of a hiccup – get in touch with one of our litigation lawyers today. Klein Legal are litigation and dispute experts and can assist you in avoiding a potential dispute or resolving a dispute by getting the right advice.  

This is general information only and does not constitute legal advice. 

If you or someone you know would like more information or require advice about anything raised in this article, please contact us on (07) 5458 6855 or email mklein@kleinlegal.com.au. 

Property Disputes Amongst Co-Owners

Property Disputes Klein Legal

Should we appoint a Statutory Trustee?

With the cost of living ever increasing, it is an increasingly common occurrence for friends, family or business partners to purchase a property together.  A motivating factor for purchasing a property with others doesn’t always last however, and as life changes, so do we and our desires, needs and circumstances.  You may have jointly bought the property whilst on the same page as a friend, family member or investor and now, the parties are wanting to do different things with the property and cannot reach a compromise. For example, one party may wish to partition (subdivide) real property, whilst the other party may not. 

This can be incredibly stressful but is not at all uncommon. It is a frequent occurrence for co-owners of a property to disagree as to what to do with the property, what price to sell it for, or even who to sell it to. This can often result in a standstill if the parties did not anticipate any deviations prior to the purchase and failed to implement a written agreement in respect of the parties’ rights and obligations as to the property. Thankfully, the Property Law Act 1974 (Qld) provides co-owners with legal options in the event that they are unable to agree on how to deal with the property. 

One way to resolve such disputes is by applying to the Court to have a Statutory Trustee appointed in respect of the property. 

What is a Statutory Trustee

A Statutory Trustee is a third party, appointed by the Court who will market and sell the property, and subsequently distribute the net proceeds of the sale to the co-owners. 

The Process

In Queensland, section 38 of the Property Law Act 1974 allows a Statutory Trustee to be appointed by the Court.  To apply, you must file an application to the Court supported by affidavit evidence and the consent of a statutory trustee who will act in the sale of the property.

Once appointed, their primary role is to realise the disputed property and distribute the sale proceeds to the respective owners. Generally, the process will entail: 

  1. The Trustee will contact the respective owners and advise of their appointment and request from the parties any information or documentation they require;
  2. The Trustee will liaise with various real estate agents in order to obtain proposals on how best to market and sell the property, and what sale price they may expect to achieve;
  3. The Trustee will arrange for valuers to inspect the property and provide a valuation;
  4. A Real Estate Agent will market the property for sale;
  5. The Trustee will enter into a contract for sale with the successful interested party;
  6. The Property will settle and any parties owed monies will be paid from the proceeds of sale (such as mortgagees, solicitor fees, real estate agent commission etc);
  7. The Trustee will then remit the remaining funds to the respective owners. 

Depending on the complexity of the property, a Statutory Trustee’s fees can be significant, and should be considered when determining whether or not to apply to the Courts for an appointment of one. 

What If I don’t want a Statutory Trustee Appointed?

Generally, a section 38 application is difficult to oppose and the Court generally will grant the appointment of a Statutory Trustee. There are, however, grounds which provide a basis for opposing the appointment of a statutory trustee, such as: 

  1. One of the co-owners holds the property as a trustee (as evidenced by a written trust document dealing with the entitlement to the property); 
  2. There is a contract or agreement in place between the co-owners that deal with how the property is to be sold, for example, a right of refusal, or requiring a certain period of time before the property can be sold. 
  3. An estoppel argument that one co-owner has exhausted their share in the property and no longer has any right to claim an interest in the property, for example, the other party may have drawn a large sum of money out against the property for their own benefit and has not repaid the sum;
  4. The equity of exoneration, where a co-owner may give a second mortgage against the property to start a business, the other owner has no interest/benefit in the business and the business subsequently fails and that co-owner is declared bankrupt – that co-owners trustee may seek to sell the house to pay the debt. The remaining owners may be able to argue that only that co-owner should bear the burden of the debt and they should be exonerated from it. 

Next Steps

Property disputes are a complicated legal issue to navigate, and it’s one that could cost you significantly if you get it wrong! Whether you are considering purchasing a property with others and would like a properly drafted written agreement recording the co-owner’s rights and obligations, or if you’d like to apply or defend a section 38 Application.  

Alternatively, if you are currently considering the forced sale of your co-owned property, or defending a section 38 Application, get in touch with one of our litigation lawyers today. Klein Legal are litigation and dispute experts and can assist you in avoiding a potential dispute by getting the right advice.  

This is general information only and does not constitute legal advice. 

If you or someone you know would like more information or require advice about anything raised in this article, please contact us on (07) 5458 6855 or email mklein@kleinlegal.com.au. 

Mediation vs. Litigation: Understanding the Advantages and Disadvantages

woman holding laptop ready for mediation and litigation case

When it comes to resolving legal disputes, there are different ways this may be done. In this article, we will focus on two (2) primary options to resolve your dispute: Mediation and litigation. Both of these options have their benefits and drawbacks, and it’s important to understand the differences to determine which option is best for your particular situation.

Mediation

Mediation is a form of alternative dispute resolution in which the parties work with a neutral third-party mediator to reach a resolution. Mediation is often less formal and less expensive than litigation, making it an attractive option for many people.

Advantages:

  • Cost-effective: Mediation may be less expensive than litigation because it typically requires fewer formal proceedings and less time with lawyers.
  • Quick: Because mediation is informal and collaborative, it can often be resolved more quickly than a court case.
  • Flexible: The parties involved in mediation can tailor the resolution to their specific needs and preferences, which is not always possible in court.
  • Confidential: Mediation is confidential, meaning that anything disclosed during the mediation process cannot be used against the parties if the case goes to trial.
  • Better for ongoing relationships: Mediation is often more effective than litigation at preserving relationships between the parties involved, making it particularly useful in family law cases or business disputes.

Disadvantages:

  • No guarantees: There’s no guarantee that a resolution will be reached in mediation, and there may be instances where going to court is necessary.
  • Uneven power dynamics: If one party has significantly more power or resources than the other, mediation may not lead to a fair outcome.
  • Less enforceable: Even if a resolution is reached in mediation, it may be less enforceable than a court order.

Litigation

Litigation in civil matters involve taking a legal dispute to court and allowing a judge decide the outcome. It’s typically a more formal and structured process than mediation, and often involves extensive court proceedings.

Advantages:

  • Guaranteed outcome: When a case goes to court, there will be a definitive outcome, which can provide certainty and closure for the parties involved.
  • Legal protections: Litigation provides legal protections and remedies that may not be available through mediation.
  • Equal power dynamics: In court, each party has an equal opportunity to present their case, regardless of their resources or power dynamics.
  • Stronger enforcement: Court orders are often easier to enforce than mediation agreements.

Disadvantages:

  • Expensive: Litigation can be much more expensive than mediation, requiring extensive court proceedings and the involvement of lawyers.
  • Time-consuming: Court cases can take years to resolve, which can be frustrating and stressful for those involved.
  • Adversarial: Litigation typically involves a winner-takes-all mentality, which can make it more difficult to preserve relationships between the parties involved.
  • Public: Court cases are public record, which can be problematic for those who value privacy.

Conclusion

In conclusion, mediation and litigation are viable options for resolving legal disputes. While mediation is often less expensive, quicker, and more flexible than litigation, it may not always be a guaranteed solution. Similarly, litigation may be more expensive and time-consuming, but it offers stronger legal protections and remedies. Ultimately, the best approach will depend on the unique circumstances of your case and the parties involved and your lawyer will advise you which option is best in your case.

Next Steps

If you think mediation or litigation might be for you – get in touch with our nationally accredited mediator or litigation lawyers today. Klein Legal offer mediation and litigation services to assist you to resolve your dispute.

This is general information only and does not constitute legal advice.

If you or someone you know would like more information or require advice about anything raised in this article, please contact us on (07) 5458 6855 or email mklein@kleinlegal.com.au.


Contact us to find out more information on Mediation

 

Why to choose Mediation to resolve your dispute

Mediation with Klein Legal

What is Mediation?

Mediation is a process in which a neutral third-party mediator helps the parties involved in a dispute come to a mutually agreed-upon solution to their dispute or issue. The mediator’s job is not to take sides or make decisions on behalf of one party or another. Instead, they facilitate communication and negotiation between the parties, helping them to identify their interests and find common ground and reach a solution to their dispute or issue.

Why is Mediation effective at resolving disputes?

When it comes to resolving legal disputes, many people instinctively assume that the only option available to them is to take their case through the court system. However, there is another option that is often preferable in many situations: mediation.

The Benefits of Mediation

While going to court may seem like the most obvious and straightforward way to resolve a legal dispute, there are many benefits to choosing mediation instead. Here are just a few:

Mediation is faster

Going to court can take months or even years, depending on the complexity of the case and type of matter. Mediation, on the other hand, can typically be completed in just one or two sessions, saving significant time and expense.

Mediation is more cost-effective

Because mediation is typically faster than going to court, it is also usually less expensive. Additionally, many courts are now requiring that parties attempt to mediate their disputes before they can proceed to trial, meaning that even if you end up going to court, you will likely need to pay for mediation anyway.

Mediation is more collaborative

In mediation, the parties work together to come up with a solution that works for everyone involved. This is in contrast to going to court, where the focus is on winning or losing. By collaborating, the parties can often come up with a more creative and satisfactory solution than a judge could provide.

Mediation is less adversarial

Going to court can be a stressful and confrontational experience. By contrast, mediation is generally a more relaxed and informal process. Because the focus is on finding a mutually satisfactory solution, the parties are often able to leave the process feeling more positive about their experience.

While going to court may seem like the most obvious choice when it comes to resolving legal disputes, mediation is often a much more effective and beneficial option. From cost savings to a faster resolution to a more collaborative and less adversarial process, there are many reasons to consider mediation. If you are involved in a legal dispute, it is worth exploring the possibility of mediation before automatically heading to court.

Next Steps

If you think mediation might be for you – get in touch with our nationally accredited mediator today. Klein Legal offer mediation services to assist you in resolving your dispute.

This is general information only and does not constitute legal advice.

If you or someone you know would like more information or require advice about anything raised in this article, please contact us on (07) 5458 6855 or email mklein@kleinlegal.com.au.


Contact us to find out more information on Mediation