Dispute Resolution
Illustrative articleBefore You Litigate: Thinking Through Your Options in a Commercial Dispute
Court proceedings are one way to resolve a dispute, but rarely the only one. Considering the alternatives early can save time, cost, and important relationships.
Brian KiprotichSenior Associate (sample)1 min readIn summary
- Gather and preserve documents as soon as a dispute emerges.
- Negotiation, mediation, arbitration, and litigation each have different advantages.
- Time limits may apply, so early advice matters.
When a commercial relationship breaks down, the first instinct may be to start formal proceedings. Sometimes that is the right course. Often, though, it is worth pausing to consider what you want to achieve and which route is most likely to get you there.
Start with the documents
The contract, correspondence, invoices, and records of performance will shape any assessment of the dispute. Gather them early, keep them organised, and avoid deleting messages or emails that may be relevant.
Clarify your objective
Are you seeking payment, performance, an apology, or an orderly exit from the relationship? Do you want to continue working with the other party? The answers can make some routes more attractive than others.
The main routes
Negotiation
Direct discussion, sometimes with the assistance of advocates, can resolve many disputes quickly and privately. A clearly reasoned letter setting out your position can be an effective starting point.
Mediation
In mediation, a neutral third party helps the parties explore a settlement. It is generally confidential and allows for creative solutions that a court may not be able to order.
Arbitration
If the contract provides for it, or the parties agree, a dispute can be decided by an arbitrator rather than a court. Arbitration can offer privacy and specialist decision-makers, though it is not always quicker or less expensive.
Litigation
Court proceedings provide a binding, enforceable outcome and may be necessary where the other party will not engage. They can also involve significant time, cost, and publicity, which should be weighed carefully.
Do not leave it too late
Legal claims may be subject to time limits, and some contracts include their own notice requirements. Taking advice early helps ensure that options are not lost.