Alternate Dispute Resolution for Civil Disputes: A Case Study and Company Policy

This article discusses alternate dispute resolution for civil disputes through a case study and company policy. It covers the nature of disputes, parties involved, resolution processes, and the need for parties to remain calm. The case study involves a civil dispute between a contractor and a client, and the company policy outlines steps for resolving disputes in a positive and effective manner.

Running head: Alternate Dispute Resolution
Alternate Dispute Resolution

Alternate Dispute Resolution 1
Contents
Part A..........................................................................................................................................................2
Answer to Q1...........................................................................................................................................2
Answer to Q2...........................................................................................................................................2
Answer to Q3...........................................................................................................................................4
The answer to Q4....................................................................................................................................5
Part B...........................................................................................................................................................6
Answer to Q1...........................................................................................................................................6
The nature of the disputes that the organization encounters....................................................................7
The parties who may be involved in the disputes....................................................................................7
The resolution processes which may be adopted to resolve the disputes.................................................8
How the issues are documented...............................................................................................................8
The policy must cater for both internal and external disputes..................................................................9
The need for parties to a dispute to remain calm and proceed in a rational manner...................................10
References.................................................................................................................................................12

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Part A
Answer to Q1.
The nature of the dispute is of civil nature and is covered under the Civil Dispute Resolution Act
2011. The parties to the dispute are the contractor who is the builder and the client. A civil
dispute is a disagreement between two or more parties which leads them to threaten or to file a
case against the other (Australian Government, n.d.a).
In all the civil matters the parties can precede Pro Se i.e. without any representation of the
attorneys, but it is important to have an attorney to represent the party.
Answer to Q2.
20th October 2018
Tasmegs Developments,
ABC road,
Melbourne,
Australia -3002
Dear Tasmegs Developments,
This is to bring to your kind notice that the money deducted due to delays and penalties in
pursuance of the contract for building the apartment situated at XYZ road in Melbourne. You
had deducted the amount of $10,000 per week for four weeks as against the delay in completing

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the contract. Furthermore, you had also retained the amount for the defects liability period
which is clearly unjustifiable
Here is the justification on our part to prove that we had completed the construction of the
building as per the conditions specified in the contract. The delays were not committed on our
part. The delay regarding the instructions was due to your late response on a number of issues
(Silverman,2014).
Moreover, the poor service from the aluminum windows manufacturer resulted in units which
were delivered three weeks behind the negotiated date. The supplier was recommended by you.
We had requested for the early delivery but he failed to deliver the windows on time.
A failed concrete test on a sample of wall panels, later on, proved to meet the specifications
which were outside the conditions mentioned in the contract. Certain issues were also faced due
to the disturbance created by the neighboring owners of property which proved to be time-
consuming and annoying while maintaining the peace of the project (Dragos and Neamtu, 2014).
So, it is hereby stated that we had fulfilled the conditions of the contract and the delays were not
committed on our part. We thereby requested you to reimburse the deducted amount. Your
failure to pay the amount will further cause the filing of a civil suit in the eligible Court
according to the Civil Dispute Resolution Act 2011(Cth )(Zamir and Ritov,2012).
Yours sincerely
XYZ Contractors
23, West Road,

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Melbourne,
Australia -3002
Answer to Q3.
The steps for resolving the dispute from commencement through litigation can be as follows:
1. The applicant who initiated the civil proceedings in the eligible court must file a step
statement at the time of filing the application according to subsection1 of Part 2 of the Civil
Dispute Resolution Act 2011.
2. The genuine step statement filed under subsection 1 must specify the steps taken for the
resolution of the issues between the applicant and the respondent in the proceedings. The reasons
for not taking the must relate to the urgency of proceedings.
3. The genuine steps statements must not be filed in relation to the wholly or partly
excluded proceedings. The genuine step statements to be filed by the respondent must be before
the date of hearing stated in the application.
4. The genuine step statement must specify the fact that the respondent agrees with the
genuine step statement filed by the applicant. If in case, it is disagreed by him, then the reasons
for his disagreement should be stated by him.
5. The genuine step statement must abide by the rules of the court regarding the eligible
court as per section 18 of the Act.
6. It is the duty of the lawyer to advise the people regarding the requirements of the Act.
However, if a party fails to file a genuine step statement then it does not invalidate the
application initiating the proceedings or a response to such application (Australian Government,
n.d.b).

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The answer to Q4.
The dispute could have been avoided by implementing the modes of alternative dispute
resolution in the case of civil disputes. It is the method for resolution of disagreements without
filing the suits in the court . The alternative dispute resolutions comprise of different procedures
namely mediation and facilitation , negotiation and arbitration.
Negotiation is one of the methods adopted for resolving most of the disputes. It involves both the
parties in the dispute. They discuss the problems orally or with the help of written agreements.
The parties present the options for resolving the dispute and arriving at an agreement about its
settlement. So the contractor who is the builder and the client could have negotiated and arrived
at an agreement for the settlement of the dispute ( Redfern, 2015).
Mediation is the process in which the independent party is involved in assisting the parties which
are involved in the dispute. The mediator who is the independent party does not have to express
his views on the merits of the matter noes does he gives any legal advice or decides over the
matter.
The dispute is settled when the parties agree amongst themselves. If the dispute is not resolved
then the legal right of the parties does not have an impact. Facilitation is similar to mediation.
However, it involves a group of people who are unable to resolve their dispute.
Arbitration is amongst the formal processes for alternative dispute resolution in the matters of
civil disputes. The parties to the disagreement are invites for arguing the case in front of an
independent person capable of making decisions regarding the resolution of the issue.

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The parties must abide by the decisions of the arbitrator. One of the parties can apply and then
another one can participate. The award given by the arbitrator is binding like the decision of the
court as per the International Arbitration Act 1974.
So, the parties could have resorted to the alternative methods of resolution of disputes and
resolved the dispute differently instead of filing litigations in this regard (Mackie and Mackie,
2013).
Part B
Answer to Q1.
The Dispute Resolution Procedure for the company can be explained as follows:

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The nature of the disputes that the organization encounters.
The nature of the dispute is associated with the relationship of commercial nature. This may
include but not limited to the commercial transactions for exchange or supply of products and
services and the agreements pertaining to distribution.
It may also comprise of commercial representation or agency, leasing and factoring along with
the construction work, engineering and consultation and activities related to licensing,
investment, financing, banking and insurance. The nature of dispute can also comprise of
activities such as exploitation agreement, concession carriage of goods or passengers along with
joint venture and other forms of industrial or business cooperation (Wang, 2014).
The parties who may be involved in the disputes
As the alternative dispute resolution methods are referred outside the courtroom but that does not
mean that they are outside the legal system of the country. SO the parties involved in the
decision-making process are the contracting parties i.e. client and the contractor who is the
builder along with the mediator or the arbitrator.
The parties involved in the ADR are motivated for communicating and understanding the issues
causing the dispute and to work mutually for finding an acceptable solution which may be
beneficial for both of them( Fiadjoe, 2013).

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The resolution processes which may be adopted to resolve the disputes
The process adopted for resolving the disputes can be reviewing the contract. The first step for
resolving the dispute is to reconsider the contract again. The clauses which specify the dispute
should be considered. It should be verified that if the parties have fulfilled their obligations.
The dispute resolution clause mentioned in the contract shall set the processes for resolving the
dispute. The termination clause shall set out the method to end the contractual relationship if the
parties wish to do so.
The second step is to negotiate between the parties. Through negotiations, the parties should
clearly communicate amongst them regarding the omissions and commissions committed by
them and the actions taken by them to resolve the issues within the given deadlines.
The third step can be resolving the dispute by alternative dispute resolution methods. It is a more
organized step as compared to negotiation. It can be supervised by an independent person known
as a mediator. The mediator shall help the parties in identifying the issues and reaching a
satisfactory agreement.
The last resort for resolving the disputes can be litigation. It involves one of the parties to initiate
the proceedings against the other party for the enforcement and defense of the legal right
(Goldberg, Sander, Rogers and Cole, 2014).
How the issues are documented
The issues can be documented with the help of the contract in which the arbitration clause is
mentioned. It shall allow the parties to the dispute to adopt the procedures for alternative dispute

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resolution. If the parties adopt the arbitration procedure, then the award given the arbitrator is
also documented in this regard (Feliciano, 2017).
The policy must cater for both internal and external disputes
In order to resolve the disputes in a proper way, appositive attitude towards disputes is
maintained. The company should adopt a policy for resolving internal and external disputes. It
must work for building a culture of acceptance, genuine responsiveness and resilience in
association with the disputes.
While evaluating an effective dispute resolution plan, it is important to include strategies for the
parties in order to improve the quality of conversations with them. The policy regarding the
dispute resolution shall require the parties to promote and be accountable for effectively resolve
the disputes as a part of the quality improvement.
The components of the dispute management plan should be clearly comprehended by the parties.
The staff must be properly trained, assisted and resourced while handling the disputes. The
company should appoint a senior staff member who is accountable for handling the dispute
management plan and his reporting to the top management.
The policy must help in safeguarding the relationships amongst the parties and reduce the
disputes in future (Australian Government, n.d.c).

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The need for parties to a dispute to remain calm and proceed in a rational manner
The parties must remain calm, professional and polite in their verbal and written communications
while resolving the disputes through alternative dispute resolution mechanism.They must avoid
abusive and emotional language and blame on each other.
They must comprehend the situation from the perception of the other party. They must think of
creative solutions and win-win strategy for restoration of the business relationship. They must
make a list of probable solutions for discussing with the other party. They should be realistic and
be prepared for negotiations.
They must contact the other party for negotiating on the solution. They must ensure that the
person with whom they are interacting must be authorized for settling down the dispute. They
must listen to the other party carefully and take notes of their conversation. They must not
interrupt in between and respond in a calm and non-threatening way (Go To Court Pty Ltd,
2018).

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References
Australian Government (n.d.a) Civil Dispute Resolution Act 2011 [online] .Available from :
https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/
CivilDisputeResolutionAct2011.aspx [Accessed 20th October 2018].
Australian Government (n.d.b) Federal Register of Legislation [online] .Available from :
https://www.legislation.gov.au/Details/C2011A00017 [Accessed 20th October 2018].
Australian Government (n.d.c) International Arbitration Act 1974[online] .Available from :
https://www.legislation.gov.au/Details/C2016C01110 [Accessed 20th October 2018].
Dragos, D.C. and Neamtu, B. (2014) Alternative dispute resolution in European administrative
law. Germany: Springer Berlin Heidelberg.Pp.1-10.
Feliciano Jr, S.( 2017) Alternative Dispute Resolution. The Catholic Lawyer. 33(1), p.10.
Fiadjoe, A.( 2013) Alternative dispute resolution: a developing world perspective. NY:
Routledge-Cavendish.pp.1-10.
Go To Court Pty Ltd(2018) Alternative Dispute Resolution in Victoria [online] .Available from :
https://www.gotocourt.com.au/civil-law/vic/alternative-dispute-resolution/ [Accessed 20th
October 2018].
Goldberg, S.B., Sander, F.E., Rogers, N.H. and Cole, S.R. (2014) Dispute resolution:
Negotiation, mediation and other processes. Netherlands : Wolters Kluwer Law & Business .Pp.
1-10.

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Mackie, K.J. and Mackie, K.( 2013) A handbook of dispute resolution: ADR in action. NY:
Routledge. pp. 1-20.
Redfern, A.( 2015) Redfern and Hunter: Law and Practice of International Commercial
Arbitration. Oxford: Oxford University Press. Pp. 1-10.
Silverman, R.A.(2014) Law and Urban Growth: Civil Litigation in the Boston Trial Courts. New
Jersey: Princeton University Press .pp. 1880-1900
Wang, M.(2014) Are alternative dispute resolution methods superior to litigation in resolving
disputes in international commerce?. Arbitration International. 16(2), pp.189-212.
Zamir, E. and Ritov, I.(2012) Loss aversion, omission bias, and the burden of proof in civil
litigation. The Journal of Legal Studies. 41(1), pp.165-207.