Dispute Resolution Lawyers

Unfortunately disputes are common and an inevitable feature of many commercial dealings and sometimes relations between people.

The lawyers at Brander Smith McKnight take great pride in their ability to resolve at least 85% of commercial disputes without the need for costly litigation.  We recognise that there are many different ways of resolving disputes and we work hard to find practical, creative and commercially advantageous solutions.

Our dispute resolution strategies generally include maintaining as much control as possible over the process of resolving the dispute and the settlement of the dispute.  There are various types of alternative dispute resolution, some of which allow the parties to maintain more control compared to litigation where the judge has control of the decision and outcome.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Alternative Dispute Resolution

Negotiation

The dispute resolution lawyers at Brander Smith McKnight are able to settle most disputes by negotiation.  We will listen to you and carefully develop a negotiating strategy that is best suited to your particular situation.  We will advise you of your legal rights prior to discussing and developing an effective negotiating strategy.  The method of negotiation may involve correspondence, providing offers of settlement or meetings which may include lawyers and clients.

Mediation

Mediation is an alternative dispute resolution option where an independent mediator helps disputing parties settle their dispute among themselves.  This is achieved by the mediator facilitating discussion between the parties with the aim of achieving a mutually beneficial solution.  Mediation is confidential and mediators do not take sides or make decisions in relation to your dispute. It is entirely voluntary and a mediator can not make a binding decision.  Mediations normally involve the mediator and respective lawyers and their clients.

Conciliation

Conciliation is another alternative dispute resolution technique using an independent and impartial person called a conciliator.  Unlike a mediator a conciliator may play an advisory role on the content and resolution of the dispute.  Similar to mediation, it is voluntary, confidential and the conciliator can not make a binding decision.  Conciliations normally involve the conciliator and respective lawyers and their clients.

Arbitration

Arbitration is an alternative dispute resolution technique which allows disputing parties to have their dispute decided by an independent, neutral decision maker, called an arbitrator.  In arbitration, the disputing parties put forward arguments and evidence that the arbitrator will assess and make a decision on.  The process is private and, subject to the parties agreement, can be confidential.  It is the most formal alternative to litigation.  The parties will often enter into an arbitration contract and subject to the terms of the contract the decision made by the arbitrator, called the award, is legally binding and enforceable.  Arbitration is often used in international trade contracts where litigation would be inconvenient and expensive.

Adjudication

Adjudication is a form of arbitration that is available pursuant to Building and Construction Industry Security of Payment Act 1999 (NSW) also known as SOPA for the prompt resolution of payment claims.  Both arbitration and adjudication typically involve representation by dispute resolution lawyers.

Expert Determination

Expert determination is suitable for technical disputes in which an independent expert is engaged. The expert is chosen on the basis of their qualifications or experience in the subject matter of the dispute.  The parties present their arguments and evidence to the expert who makes a determination.  Subject to any contract between the parties regarding the expert determination, the determination will be final and binding.  This technique is often used to resolve technical disputes such as design, construction and complicated financial disputes.  Typically expert determination includes the expert and respective lawyers and their clients.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Litigation

Litigation is the process of resolving disputes through a court system.  It is the most formal and expensive process of reaching a dispute resolution.  For this reason, throughout the process of litigation, the lawyers at Brander Smith McKnight remain committed to resolving your dispute as early as possible.  This will involve developing a strategy for litigation and will include tactics such as ongoing negotiation, making formal offers of compromise and interlocutory applications to court where appropriate.  Interlocutory applications are applications made during the proceedings to gain a tactical advantage.  Examples include applications for summary judgement or security for costs.

Basic Steps in Litigation

The basic steps in litigation involve the plaintiff’s lawyers drafting, filing and serving a statement of claim.  A statement of claim is the document which commences legal proceedings.  It is a concise document setting out the legal cause of action and the essential facts of the case.  Upon receiving the statement of claim, the defendant has 28 days to draft, file and serve a defence.  The court will then list a directions hearing at which a timetable will be set for the preparation for each parties evidence.  There may be orders for mediation and eventually a date for hearing.  The  dispute resolution lawyers at Brander Smith McKnight settle the vast majority of cases prior to a hearing.  In the event that the matter goes to hearing, the judge will make a binding decision.

BSM Lawyers and Litigation

The dispute lawyers at Brander Smith McKnight have experience in all courts including Local, Coroners, District, Supreme and Federal Courts and various tribunals including the NSW Civil and Administrative Tribunal (NCAT).  We have the experience to advocate for you in court to save you the additional expense of a barrister.  Our lawyers take pride in both the meticulous and considered preparation for court and their ability to effectively and persuasively advocate for your rights whilst representing you in court.  However, in more complex matters we have a panel of expert barristers who we frequently engage.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Frequently Asked Questions

chevronWhat is the success rate of BSM Law in resolving commercial disputes without litigation?

At BSM Law, we take great pride in our ability to resolve at least 85% of commercial disputes without the need for costly litigation. We work diligently to find practical, creative, and commercially advantageous solutions. The success rate depends on the type of dispute, for instance straight forward debt recovery matters are successfully resolved in over 95% of cases without the need for litigation.

chevronWhat dispute resolution strategies does BSM Law employ?

Our dispute resolution strategies are based on maintaining control of the process to the greatest extent possible and minimising costs to the client. We develop a dispute resolution strategy and plan that selects the most appropriate mechanism at any stage during the dispute. These mechanisms may include negotiation, mediation, conciliation, arbitration and expert determination. Each dispute resolution strategy is developed in consultation with the client and tailored to the type of dispute and the needs and objectives of our clients.

chevronWhat methods of negotiation does BSM Law use?

Our lawyers do not use a one size fits all approach, we carefully develop a negotiating strategy that is best suited to your particular situation. The method of negotiation may involve correspondence, providing offers of settlement, meetings or informal settlement conferences which may include lawyers and clients, without the presence of a mediator.

chevronHow does BSM Law handle mediation?

Prior to any mediation Brander Smith McKnight lawyers will prepare a mediation plan that includes the client’s most and least preferred outcomes and which aspects can or cannot be compromised. We will prepare a mediation paper to provide to the other side and the mediator. Each mediation is different, but generally the introduction to the mediation includes the mediator, the legal representatives and each of the parties. After the introductory session, parties generally move to a private meeting room to discuss their position and any offers are communicated between the parties by the mediator. Mediation is confidential and voluntary and mediators do not take sides or make decisions in relation to the dispute. Neither party can be compelled to reach agreement. If there is no agreement, BSM Lawyers will consider and discuss the next phase of the dispute resolution strategy. It is important to note that you are not required to speak during the mediation and your BSM lawyer can represent you entirely.

chevronWhat is the role of a conciliator in the conciliation process at BSM Law?

A conciliator is an independent and impartial person who may play an advisory role on the content and resolution of the dispute. Similar to mediation, conciliation is voluntary, confidential, and the conciliator cannot make a binding decision. The conciliator plays a more active and advisory role compared to a mediator. BSM Lawyers will decide in consultation with you, where conciliation is a suitable part of the dispute resolution strategy and will prepare for and represent you during the conciliation. Preparation generally involves drafting a conciliation paper including relevant documents such as contracts.

chevronCan you explain how arbitration works at BSM Law?

In an arbitration process, the disputing parties put forward arguments and evidence to an independent, neutral decision maker, called an arbitrator. Brander Smith McKnight lawyers prepare all of the evidence, the legal argument and the legal submissions to be provided to the arbitrator. We also represent the client, making any oral submissions during the arbitration. Subject to the parties prior agreement, the decision made by the arbitrator is legally binding and enforceable.

chevronWhat is adjudication and when is it used in dispute resolution?

Adjudication is a dispute resolution process used specifically in relation to disputes arising in building and construction matters pursuant to the Building and Construction Industry Security of Payment Act (SOPA) 1999 (NSW). Adjudications are determined purely on the documentation provided by each party. BSM has extensive experience in adjudication applications and responses to adjudication applications. For more information see Security of Payments Act

chevronWhat is expert determination and when is it used in dispute resolution?

Expert determination is suitable for technical disputes. An independent expert is chosen based on their qualifications or experience in the subject matter of the dispute. The parties present their arguments and evidence to the expert who makes a determination which, subject to any contract between the parties, is final and binding. Brander Smith McKnight lawyers have extensive experience using expert determination and will prepare all evidence, legal arguments and legal submissions and respond to any request for information from the expert.

chevronHow does BSM Law approach litigation?

Litigation is the most formal and expensive process of reaching a dispute resolution. Throughout this process, we remain committed to resolving your dispute as early as possible, which involves developing a strategy for litigation, including ongoing negotiation and making formal offers of compromise. Often once legal proceedings are commenced, the other side will find additional motivation to settle the dispute and frequently during the course of litigation and prior to any hearing, BSM lawyers will be able to assist you to reach a satisfactory resolution. We use tactics such as offers of settlement and offers of compromise which can affect the legal costs payable by each side and apply pressure on the other side to reach an agreement. In the event that the dispute does proceed to a hearing, BSM Law has extensive experience and a team of expert barristers and senior counsel that we select depending on the type of matter.

chevronWhat courts and tribunals does BSM Law have experience with?

Our lawyers have experience in all courts including Local, Coroners, District, Supreme and Federal Courts and various tribunals including the NSW Civil and Administrative Tribunal (NCAT).

chevronDoes BSM Law offer a free consultation?

Yes, we do offer a free 20-minute no obligation consultation that includes a case evaluation and cost estimate. You can call us at 02 8539 7475 to arrange a session.

Our Locations

Sutherland

iconSuite 2
9-15 East Parade
Sutherland 2232
Parramatta

iconLevel 14 Suite 2/3 Parramatta Square, Macquarie St,
Parramatta, NSW 2150.
Wollongong

iconLevel 1, Suite 1
90 Market Street
Wollongong NSW 2500
Sydney CBD

iconMLC Centre
Level 57, 19-29 Martin Place
Sydney NSW 2000
Suite 2
9-15 East Parade
Sutherland 2232
Level 14 Suite 2/3 Parramatta Square, Macquarie St,
Parramatta, NSW 2150.
Level 1, Suite 1
90 Market Street
Wollongong NSW 2500
MLC Centre
Level 57, 19-29 Martin Place
Sydney NSW 2000

Your Dispute Resolution Legal Team

Mark Smith

Principal

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William Onishi

Senior Associate

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Sam Bailey

Senior Associate

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Kyle BSM Lawyer Sydney NSW

Kyle Dmoch

Associate

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Curtis Newbitt-Hill

Lawyer

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Tom Lawler

Lawyer

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Get in touch

Please call us on 02 8539 7475 or complete the enquiry form below for a response within 24 hours Monday to Friday.