FAQ

+ What defines a 'dispute'?

A dispute is any sort of disagreement between people who are in some type of relationship. However, not all disputes are legal disputes. A legal dispute is a dispute where the people involved in the dispute also have a legal relationship.

There are a very wide range of legal relationships – sometimes we have a legal relationship with someone without even realising it. Common legal relationships arise through contract, like employers and employees, or a builder and her client. Other relationships arise from the nature of the relationship, such as a defacto relationship or marriage. Novel situations can also create legal relationships, such as if you agreed to accept responsibility for someone else’s property, you may become that person’s trustee through a constructive trust.

The nature of the relationship will often significantly affect how the dispute may be resolved. For example, the Family Court has jurisdiction over relationships where there is a protective element, i.e. a vulnerable person such as someone with dementia, or children. The High Court has jurisdiction over companies, and the Employment Court has jurisdiction over employment disputes. It's important to understand the nature of a dispute and the legal relationships involved so that the dispute can be resolved most effectively, rather than attempting resolution through forums that don’t have the power to provide resolution.

+ When is the best time to consult you in respect of a dispute?

It is not too late for me to get involved in any dispute – even if you have a court hearing the next day! It's best to consult me as early as possible, and preferably before anyone has commenced legal proceedings or taken any significant steps in the dispute (such as dismissing someone or resigning). This is because I can often influence the dispute at an early stage, and help to manage risk and expense. It can be difficult to get a dispute resolved quickly and cheaply once the courts are involved.

+ How do you charge?

It is only natural that clients are concerned about costs. I feel the same way whenever I use a professional’s services!

The only thing dispute resolution lawyers can sell is their time. Similar to almost all lawyers working in this area, I charge for my time which I record in 6 minute units (there is no magic behind using 6 minute units – it is just an easy way to capture time spent on different activities, and 6 minutes is the sweet spot for balancing clients’ and lawyers’ interests).

I do not promote fixed fees, because the fixed fee will normally be higher than the actual cost of doing the work. However in some situations, I have agreed to do work for clients on a fixed fee basis when they want the certainty of knowing what I will charge. I'm always happy to discuss my costs with you to get the balance right.

+ How much would my dispute have to be worth to justify using a lawyer?

My clients have often said that the value of involving me in their dispute was that they had a trusted advisor and advocate, fighting in their corner, and protecting their interests. If that sort of support and service is valuable to you, then the financial value of the dispute may not be so relevant to your decision whether to engage me.

Having said that, I have worked with clients previously where I’ve said I did not think my involvement would be worthwhile. In those situations, I’ve been able to point my clients to the right direction to resolve their dispute which they can often do themselves, or with some coaching from me from the sidelines.

I am aware that lawyers’ fees can be expensive – I try to minimise those costs where I can but at the same time, legal training and experience is difficult and complex! I believe it's reasonable I am paid properly for those skills and experience.

+ Can you consult remotely or do I need to be based in Wellington?

I can work on disputes remotely. I've recently worked on disputes in Tauranga, Auckland, Christchurch and in the wider Wellington region. If I think I can't do a good job for you remotely, I would be happy to put you in touch with good lawyers in your region who may be able to help.

+ What is the initial process and what will I need to provide you with for you to advise me?

The initial process is a face-to-face meeting or video call where we'll go through your dispute and the events that have led to it. Preparing a timeline of events in advance really helps to make that meeting efficient and focused. If you can provide all documents relating to the dispute and a timeline of events ahead of our initial meeting, you'll save yourself money in legal fees (as I won't have to do that work!).

Relevant documents include contracts, letters, emails, online posts and text messages, and any notes you may have kept about what happened.

During our initial meeting, I'll be able to give you a preliminary view on the merits of your case, its strengths and weakneses, likely outcomes, and what dispute resolution approaches we should use. I'll also let you know if your dispute lacks merit, or should be resolved outside of the legal system.

+ Can you force a party to go to mediation?

Many legal forums consider mediation to be an effective way to resolve a dispute, and strongly encourage the parties to attend. However, mediation is voluntary and no one can be forced to attend.

In my experience, probably 90% of disputes get resolved through an informal process (like mediation) rather than a formal process (such as a court hearing).

+ Can I recover costs from my opponent?

The usual rule is that if you win your case, you can get costs from the other side. However, the reality is that any costs you receive will cover only two-thirds of your actual costs (unless the other side has acted dishonestly or contemptuously). This means that even with a very strong case, you need to be prepared to pay a portion of your legal fees.

Your opponent will often recognise if you have a strong case. When that's the case, it's easier to get your opponent to contribute to your legal costs as part of a negotiated resolution. Sometimes, settlements also include a confidentiality clause to protect the privacy of both parties.

+ What are the risks to me in pursuing a case?

Pursuing a marginal or 50/50 case is risky. If you misjudge the risks, losing a legal case can be very expensive. You have to pay your own legal costs and may end up having to pay around two thirds of your opponent’s costs if you lose.

There is also an emotional cost of commencing or being involved in proceedings – it's not unusual for people to run out of 'oomph' after a while as the emotional effects of being in dispute mounts up.

I try and help my clients manage and assess the risks and merits of continuing with proceedings at different stages along the way. There are normally at least 2 or 3 ‘off-ramps’ in the disputes process where clients can reach a resolution by agreement. Those 'off-ramps' are good times to consider the risk of continuing further.

I respect clients’ wishes where they want to continue a case as a point of principle. For example, I've acted for clients or been involved in proceedings where: an employer refused to negotiate with the employee because of the poor precedent that would set for other employees; a wife had compromised too much during a difficult and controlling relationship and wanted to stand up for herself; a builder’s client had exploited the builder’s goodwill – compromising in the dispute would have just endorsed the other side’s exploitative behaviour.

+ How long will I have to wait until my claim goes to Court?

Getting a case filed in court can be reasonably quick, but getting a hearing depends on many factors. Often, your case will be resolved out of court, and sometimes quite quickly (i.e. 2 or 3 months).

In some cases, you need to file proceedings to demonstrate to the other side that you’re serious. Filing proceedings can be a way of calling out poor conduct by the other party as they will have to answer to a judge for that conduct if the matter goes to a hearing.

+ What is the difference between litigation, arbitration and mediation?

Mediation and negotiation are informal ways of resolving disputes by consensus. The mediator or negotiator assists you to work out a pragmatic solution that takes into account both sides’ risks, interests and objectives. The benefit of these approaches is that you remain in control of the dispute and how it will be resolved, rather than handing it to someone else to decide.

Litigation uses the court system to get an independent and impartial decision-maker to decide your case. You present your case to the decision maker – i.e. a judge – who then decides who is right and who is wrong (sometimes there’s a bit of both). You have the opportunity to influence the decision maker, but you are often stuck with their decision, whether you like it or not (unless you appeal it to a higher court).

Arbitration is used in some sectors to provide decisions more quickly than the court system. The process is less formal than a court, but an adjudicator can still make binding decisions like a judge. It's difficult to challenge an arbitrator’s determination.

+ What does 'without prejudice' mean?

Whatever you say or write to the other party in a dispute can often be relied on court and potentially used against you. For example, if you admit to doing something, your admission could be raised at a hearing, even if you want to deny it.

However, sometimes we need to be able to explore or discuss options for resolution without being bound by what we say or do. The freedom to do that without a comeback in future can create an environment more conducive to resolution.

An example is where an employer believes an employee actually wants to resign (rather than be dismissed). The employer may want to sound out the employee and discuss their belief with the employee without being accused of forcing the employee's resignation later on.

That discussion can be had under the protection of what is called 'privilege’ which is created by without prejudice communication. Without prejudice correspondence or conversations allow parties to explore options more freely. The other side is not allowed to refer later to what was said unless you agree to waive privilege.

+ What are emergency applications (injunctions)?

Emergency applications (referred to as without notice or sometimes ex parte applications) are a way of getting a court to act urgently on a matter where the delay in normal proceedings would materially disadvantage one of the parties. Examples where emergency applications would be warranted include personal safety, dimunition of property (i.e. emptying a bank account or selling a house), and where a child may be about to be taken out of the country.

If you want to apply to the court urgently, it is very important that you are completely truthful about all relevant matters, even ones that may be unfavourable to you, because the court will make a decision after only hearing one side of a story.

+ What is Parenting Through Separation (PTS) and Preparation for Mediation (PFM)?

PTS and PFM are services provided to parents to try and reach a negotiated and out of court resolution of their dispute. PTS is particularly effective in the right circumstances with the right dynamics. PTS is not as effective if violence or controlling behavior is involved.

+ What is Voice of the Child?

Children are important subjects if they're involved in proceedings, but they're not participants in the traditional sense (because they've not often not reached the age of majority). To ensure children’s interests are properly protected, the Family Court appoints a lawyer to act for the child (called a Lawyer for Child). This person ensures that the child’s voice is heard throughout the proceedings but without the child themselves having to be embroiled in them.