Recovery/Dispute Resolution:

Who will be interested in reading this page?

• Any person (in Victoria) who is concerned that financial advantage has been taken of them, or might be taken of them, and may seek to recovery any loss.
• Those who represent anyone who has been the subject of elder financial abuse – be they powers of attorney, guardians, carers or other professionals.
• Those who are seeking to prevent financial abuse.
• Those who are looking for information about how elder financial abuse disputes are resolved.

Dispute resolution – going to court is a last resort:

It is a myth that financial disputes, including large financial disputes, have to go to court to get resolved.

In fact only a very tiny percentage of disputes ever reach the stage of a court verdict.

Many, if not most, disputes are resolved by private negotiation – exchange of emails, telephone calls, and the like. Of those that are not resolved this way, and court/tribunal proceedings are commenced, the very great majority, probably over 80%, are settled at court/tribunal appointed mediations or case conferences. Of the small number that is still not resolved by these processes, the majority are either settled before court, or during the court hearing.

Solicitors’ professional duties require them to resolve disputes quickly and cost efficiently. For example, if a solicitor were to try and resolve the dispute by immediately issuing court proceedings, without any attempt being made to resolve by negotiation, then that solicitor could be required to pay the other side’s legal costs personally.

Sometimes court proceedings have to be instituted, but again, solicitors’ ethical and professional responsibilities are such that they must certify that there is a proper basis for the claim. Accordingly, claims without a proper basis, or fanciful claims, cannot be commenced without the solicitor risking personal liability.

How are disputes settled before trial?

Most if not all courts now have a compulsory settlement or mediation process. That is, the parties are ordered to participate in a private or court conducted mediation or conference.

In our experience most cases are settled at the mediation/case conference stage. Many more cases are settled after the mediation.

The courts actively encourage the parties to settle. The reason for delays in court proceedings is because of the backlog of cases awaiting/moving towards a trial. It is in the court’s interest to have cases settle and thus reduce the backlog.

Are solicitors required to make efforts to settle cases, and thus avoid going to court?

Yes. Relatively recently solicitors have had a series of obligations placed on them by the provisions of the Civil Procedure Act 2010 (Vic). This piece of legislation has been fairly revolutionary and the courts are taking its provisions very seriously.

The basic thrust of the various obligations imposed upon solicitors is to ensure that litigation is conducted fairly, cost effectively, and quickly, and that efforts are made to resolve cases without the need for the case to go to trial.

For example, section 19 provides – “For the purpose of avoiding undue delay and expense, a person to whom the overarching obligations apply must not take any step in connection with any claim or response to any claim in a civil proceeding unless the person reasonably believes that the step is necessary to facilitate the resolution or determination of the proceeding.”

Accordingly, solicitors are now under effectively a positive obligation to endeavour to get disputes resolved quickly.

How do we go about resolving disputes?

Exactly as indicated above – we will see the client to determine whether a claim has merit, and if we believe it does, we will discuss the options for recovery. We will commence any dispute resolution process by private and confidential communications with the other party. If the matter does not resolve we will only then consider other options, again in close consultation with the client. It is always the client’s case, and we will follow whatever instructions the client gives us.

Sometimes more formal private settlement processes can be used.  For instance, the parties can agree to go into a private mediation. A mediation is a process whereby the parties meet, but with an independent mediator engaged to facilitate discussions.  The parties don’t have to face each other, they are in separate rooms, and will have the mediator go between them relaying offers and if necessary information that may help to resolve the matter.

This firm has been involved in a large number of mediations, and we believe that they are a very good way of getting disputes resolved. The parties themselves can determine their own resolution rather than having a resolution imposed upon them by a court order.

In summary:

• Going to court is a last resort and solicitors’ ethical and professional responsibilities and the court process itself are designed to keep matters out of court
• There are many forms of dispute resolution that are always employed before court proceedings are contemplated
• The legal profession has over the last several years become more involved and is more aware of alternative forms of dispute resolution
• The great majority of disputes are settled out of court