MANAGEMENT
Yearbook 2022
Is it better to litigate or deviate to alternatives Are negotiation, mediation and arbitration feasible alternatives to litigation? This report by AMAAS director Jerome Matthews provides a definitive guide for decision makers
T
he answer to the question above is, of course, “Yes in a heartbeat”. Alternative Dispute Resolution (ADR) clauses, as the options are known, should be professionally drafted and inserted at the time of negotiating contracts or drafting terms of trade, not left until a problem arises. The benefits include speed of resolution, flexibility, substantial costsaving and the satisfaction gained from resolving your own problems rather than having an expensive litigated decision foisted upon you by a judicial tribunal. 14 infrastructurenews.co.nz
Litigation
Anyone who has ever been involved in building their own business or practised in some way in commercial law will be familiar with the feelings which arise when a dispute raises its ugly head. The feelings may not be the same in all
The lawyers may nod sympathetically at the predicament but inwardly be rubbing their hands together with glee at the prospect of the injection of fees. It is frequently stated, not only in jest, that the only winners in litigation are the lawyers; a centuries old
"As the length of the trial increases with matters becoming less straightforward so do the costs increase" parties, indeed they may be vastly different with the businessperson on whichever side of the dispute having a sense of foreboding as to what costs and subsequent losses may be caused by the dispute.
perception as the painting depicts. When a business dispute arises, more often than not, the first thing which disputants do is to give their lawyers a call. This is understandable, particularly
as it may be as a response to a lawyer’s letter sent by the “aggrieved” party. The problem with this is that it’s the first step on the slippery slope to escalating legal fees. Drafting a Letter of Demand can cost $750 + GST and drafting a response likely to be a similar sum dependent upon the time involved. Fees may vary if one shops around, but from there spending on legal fees may escalate. Of course, a good lawyer is worth his or her weight in gold, well-worthy of their fees and may ensure that you win your case – and who doesn’t want to win? There’s the knub; litigation is always a win-lose, not a win-win situation. One
