Has it come to this? A short guide to dispute resolution
In an ideal world, we’d all conduct our business diligently, fairly and without friction but the pressures of making money, saving money and competing interests and personal differences can get in the way.
Whether you’re self-employed, or are just getting started, you might already have experience chasing the payment-shy or the under-delivering. If you’re currently in a situation where someone isn’t holding up their end of the deal, here are some dispute resolution tips that can help.
Step 1: Communicate
Before you take conflict resolution to the next level, make sure you’ve called and emailed to follow-up with the relevant party or parties. It seems obvious, but don’t overlook the value of communication and reminders. When necessary, a forthright, respectful conversation or a polite if strongly-worded email is also appropriate.
Writing doesn’t need to be difficult. Lay out the agreement, and include photos, screenshots or scans of your contract, invoices, and previous correspondence. Explain the situation calmly and clearly, and give them a little bit of time to reply.
Still not working?
Try one more email or call. Set a date for final resolution and suggest that if they refuse to come to the table, you’ll have no choice but to appeal to the relevant statutory authority for your state or territory.
Step 2: Mediation
You’ve called, emailed and thrown your best, most diplomatic self into getting them to play fair – without resolving your dispute.
In some States and Territories there are bodies whose role is to assist the self-employed, small businesses and a variety of other organisations with dispute resolution at low cost. They might be able to help resolve disputes involving sums from hundreds to millions of dollars.
If you’ve tried everything you can, but you’re being ignored or led on, then it might be time to contact one of these bodies.
As as example, the Victorian Small Business Commission (SBC) runs a four stage mediation process:
Information: They’ll listen to your side of the story and might offer some advice on how to solve the dispute on your own.
Preliminary assistance: They will try and solve the dispute by telephone and email. This is exactly what you tried to do, except they have the advantage of being a third party to your dispute.
Mediation: If for whatever reason the situation is too complex to be resolved by phone or email, both parties can be asked to come together with an experienced mediator to work out the situation in a way that works for everyone.
In some circumstances, this may take the form of what is called a ‘facilitated meeting’. A facilitated meeting is a process in which all parties are given the opportunity to fully express themselves and the reasons for the dispute, sometimes in private. This helps to clarify the situation and work out a compromise. The facilitator does not make any judgements on the outcome.
Outcomes: The aim is to try to resolve the dispute in a way that is both fair and mutually beneficial.
The Victorian SBC claims that they resolve about 30% of disputes during the preliminary stage, and 80% of disputes if the process reaches the stage of a face to face meeting.
However, you need to understand the SBC doesn’t have ‘legal authority’. This means it can’t force a party to pay or issue fines.
What claims will the SBC consider?
According to the Victorian SBC’s website, they will consider the following claims:
- General business disputes under the Small Business Commission Act 2017.
- Disputes between retail tenants and landlords under the Retail Leases Act 2003.
- Disputes between owner drivers or forestry contractors and hirers under the Owner Drivers and Forestry Contractors Act 2005.
- Disputes between farmers and their creditors under the Farm Debt Mediation Act 2011.
- Disputes between taxi drivers and operators under the Transport (Compliance and Miscellaneous) Act 1983.
Step 3: Legal action
Lawyers can be expensive, so there’s an important value equation to calculate. If your case is hundreds of dollars, or even a few thousand, much of that could get swallowed up in legal fees before anything much has happened.
It’s not just about the money. Think about the time and the emotional stress involved in pursuing a claim. Legal proceedings might seem simple, but you can spend a lot of money on a claim which you might not get back, even when a claimant is on the right side of the argument. Of course sometimes you just want your day in court. It’s up to you.
Small Business Commission Act 2017, Chief Parliamentary Counsel, Authorised Version No. 001, No. 16 of 2017, Authorised Version as at 1 July 2017
Retail Leases Act 2003, Chief Parliamentary Counsel, Authorised Version No. 024, No. 4 of 2003, Authorised Version incorporating amendments as at 1 July 2017
Owner Drivers and Forestry Contractors Act 2005, Chief Parliamentary Counsel, Authorised Version No. 016, No. 49 of 2005, Authorised Version incorporating amendments as at 1 July 2017
Farm Debt Mediation Act 2011, Chief Parliamentary Counsel, Authorised Version No. 003, No. 42 of 2011, Authorised Version incorporating amendments as at 1 July 2017
Transport (Compliance and Miscellaneous)
Act 1983, Chief Parliamentary Counsel, Authorised Version No. 202, No. 9921 of 1983, Authorised Version incorporating amendments as at 1 July 2017
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