Specialist Fields

Dispute Resolution

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We assist and support businesses in all areas of Dispute Resolution

Dispute resolution can take a number of forms. In a legal setting, dispute resolution usually entails litigation, which involves resolution through the courts. Litigation work is limited to attorneys practicing as such at law firms. Caveat is not a traditional law firm and does not offer a litigation service.

Our specialist litigation lawyers who have extensive litigation experience are, however, available to advise individuals and businesses on litigation avoidance strategies, appropriate dispute resolution options, available remedies and pre-litigation steps. They are also available to assist law firms with overflow litigation support work such as discovery and trial preparation.

‘Litigation…is the legal profession’s equivalent of surgery, to be used as a last resort when all other means of resolving the problem are inadequate or have failed. Litigation (like surgery) is by its nature risky, intrusive, painful and expensive. It can only be applied to a narrow range of problems in its field. It cannot guarantee a favorable outcome…Fortunately the law is versatile enough, and lawyers creative enough, to include alternative methods of dispute resolution in the array of tools employed to solve legal problems.’

Clients don’t need lawyers, they need trusted advisors who are experts in the law.

- MATTHEW THOMSON (Panel Expert)

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Dispute Resolution

Dispute resolution can take place through a number of mechanisms. Where a contractual or commercial dispute arises, it was historically resolved either by litigation in a court or by way of arbitration, but more and more businesses are appreciating the value of mediation and facilitation.

What mediation offers:

  • A strategic approach – not only within mediation but when and how to most effectively engage in mediation in the context of the other mechanisms, including litigation and arbitration, in a multi-tiered manner.
  • It can be conducted and concluded as soon as the parties and/or their representatives are available and can all happen via an online platform.
  • Your position, needs and interests can be strategically presented in a non-adversarial way, recognizing that the negotiated outcome to a dispute is usually more flexible, satisfying and sustainable than an order imposed by a court or other tribunal. 
  • All written and/or oral disclosures made during the process are confidential and inadmissible as evidence should the dispute not resolve and proceed to litigation. 
  • No formal record of discussions is kept and the mediator may not disclose the content thereof to anybody outside of the mediation process. This allows for the management of reputational and operational risk by limiting exposure of the dispute to the parties themselves. 
  • All discussions during the process are also non-binding until reduced to writing and signed by both parties which affords a freedom to explore varied possibilities in a non-threatening way.

Dispute facilitation

What facilitation offers:

  • An opportunity to pre-empt or prevent common friction points through discussion and joint future-oriented solutions.
  • A guided collaborative process with a specific outcome in mind, ideal for bigger teams or groups.
  • A forum to deal with any latent or brewing conflict before it becomes an issue.
  • A process that allows for more creative input and solutions than mediation.
  • A solution or intervention for when you need an independent process designer who is skilled in conflict resolution.
  • An ideal platform to deal with sensitive training issues, such as bullying or harassment in a neutral delivery.
  • A process that deepens communication, understanding and cohesion and group dynamics between parties or teams.
  • A non-threatening process to utilise in instances where organisations or teams are conflict averse.

Whether or not a dispute should be referred to facilitation, mediation or arbitration or dealt with by the courts will depend on the nature of the dispute and what has been agreed in this respect between the parties. To this end, a dispute may only be referred to facilitation, mediation or arbitration where the parties have expressly agreed to do so, and care therefore needs to be taken to ensure that a dispute is instituted in the correct forum. For many businesses, a multi-tiered approach is preferred. Multi-tiered dispute settlement is the use of an integrated system of mechanisms in an adaptive and appropriate way – using the best means to achieve the best outcome. This may be mediation, followed by arbitration or litigation, or arbitration, followed by mediation.

Typically, arbitration proceedings are fairly similar to court proceedings save that they may be less formal, the parties may have a say in respect of the appointment of the arbitrator and the timing of the hearing, and they usually take less time to finalise.

That said, resolving a dispute by way of arbitration can be more expensive because the parties are required to carry the costs of the arbitrator, the arbitration venue, the recording of proceedings, etc., which is not the case in litigation before a court.

Mediation, on the other hand, is structured negotiation and is informal and flexible and is particularly suitable when the parties in dispute require a future-focused solution to regulate an ongoing relationship.

Typically, the outcome of arbitration and litigation is the imposition of a legal remedy by an adjudicator (arbitrator or judge). Mediation leaves the solution in the hands of the parties and the mediator acts as the facilitator of the negotiations, skilfully assisting the parties to find a mutually acceptable outcome. 

Through Caveat Legal’s dispute resolution service, advice can be provided as to the type of dispute resolution clauses which should be inserted into your commercial contracts as well as – when a dispute arises – the forum to which it should be referred.

FAQs

Frequently asked questions on Dispute Resolution

Dispute resolution involves resolving conflicts through methods such as mediation, arbitration, or facilitation, instead of litigation. The timeline depends on the method and the nature of the dispute, although it is often faster than other remedies such as litigation.

The three types of dispute resolution methods available are mediation, arbitration and litigation. Caveat offers alternative dispute resolution options, including mediation, arbitration, and facilitation, each suited to different types of disputes and outcomes.

ADR encompasses various approaches to resolve disputes outside the courtroom, focusing on collaboration and confidentiality. Unlike litigation, which is formal and often lengthy, ADR is flexible, often less adversarial, and designed to reach mutually acceptable solutions.

Mediation involves a neutral mediator who helps parties reach a voluntary non-binding agreement, allowing them to control the outcome.

Arbitration involves an arbitrator, who listens to both sides and makes a binding decision, similar to a private court ruling, with limited control for the parties over the outcome.

Conciliation allows a neutral conciliator to advise on solutions but without enforcing decisions.  

Each method varies in structure and outcome control.

ADR encourages collaboration and open communication, making it easier to resolve conflicts amicably and preserve professional relationships. Litigation can often strain relationships due to its adversarial nature and formality.

The best method depends on your business’s goals, the type of dispute, and the relationship you wish to maintain with the other party. Caveat’s advisors can help you assess which approach aligns best with your needs and interests.

Dispute resolution is ideal when businesses want faster, more cost-effective, and relationship-focused outcomes. It’s often used to prevent costly litigation when confidentiality, flexibility, and preservation of business relationships are priorities.

Mediation and arbitration are often faster, more flexible, and can be less costly than litigation. They allow for private, adaptable solutions and maintain control over outcomes, unlike court proceedings, where a judge imposes a decision. Mediation also encourages collaboration, helping businesses maintain relationships.

Yes, ADR is commonly used for international disputes as it can transcend jurisdictional issues, offering a neutral ground for resolution

Caveat’s specialists handle a wide range of disputes, including contractual disagreements, partnership conflicts, and ongoing commercial relationships, ensuring that each case receives a sound approach.

Yes, Caveat’s team can assist with multi-tiered dispute resolution strategies, including cases that may require mediation first and arbitration if necessary.

Absolutely. Caveat’s specialists excel in managing ongoing business disputes through sound legal strategies that help maintain professional relationships while achieving resolution.

If ADR does not resolve the issue, Caveat’s specialists can advise on further steps, including preparing for litigation if necessary. However, ADR is designed to avoid escalation to the courts whenever possible.  

Resolving disputes does not always entail litigation. It is the ability to analyse the issues at hand and provide sound legal advice based on a formulated resolution strategy which, after thorough investigation and analysis, responds to the issue at hand while ensuring the client’s expectations are matched.

- Yonela Ndila, Caveat Panel Member

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