Alternative Dispute Resolution
We regularly use mediations and informal settlement conferences to achieve cost effective outcomes.
We work towards convening an informal conference at the earliest possible opportunity, to limit the issues in dispute - if not achieve full resolution of the claim. We regularly hold early face-to-face "issues" conferences to identify areas of agreement and to dampen unrealistic claimant expectations. We have found this to be an effective way to reach settlement in challenging cases.
Gilchrist Connell has successfully applied ADR processes for many claims - some examples include:
• With a co-defendant, we jointly retained an expert in a construction dispute to ensure a joint front
between co-defendants. This strategy resulted in a strong bargaining position for the defendants,
reduced costs and led to a good commercial resolution. This strategy will be increasingly attractive as
Courts now seek to “hot-tub” experts, order the production of joint expert reports and force the
appointment of a single expert under revised Court rules.
• We recently resolved a claim against a stormwater management contractor that had become stalled by
a dispute between the claimants and a co-defendant Council. The claim resolved after a protracted
two-day mediation, with the Council contributing the majority of damages.
• In the case of an orange juice manufacturer, we developed and obtained the approval of the Federal
Court for a claims assessment regime, which enabled assessment of over 500 claims by reference to a
questionnaire filled out by the claimants. The assessment regime was extremely effective at achieving
rapid, consistent and agreed assessment of claims. This resulted in significant defence costs savings
and a capping of claims costs.
• The collapse of a show ride led to a claim against multiple defendants who were unable to come to
agreement at mediation on apportionment. We coordinated offers of settlement to claimants to protect
the defendants, and pressed for a hearing on apportionment which ultimately forced a settlement on
that issue. We have now focused efforts on reducing claimant expectations and negotiating settlement
• In a high profile claim for injury in an immigration detention facility, we held meetings with the
co-defendants and achieved a settlement-preserving reputations despite the additional pressure of keen
At Gilchrist Connell, we pride ourselves on how we handle matters. All files are first reviewed by a principal, who drafts the initial advice to the client. We firmly believe in devising a strategy for the conduct of a matter as soon as possible after instructions are received.
We are not process driven or constrained by court caseflow timetables or procedures. Each claim is assessed and sorted into one of three categories - a claim that should be settled at the earliest opportunity, a claim that should be defended or a claim which requires further investigation.
We can and will defend matters where necessary. However, in our view, a trial is the last resort. If a matter is to be litigated we have the resources to handle large-scale litigation within cost effective parameters. As a general practice, we don’t brief Counsel until it is either necessary or strategically appropriate to do so.
All matters are approached on the basis that settlement should be attempted early in order to purchase any risk and deliver a more cost effective outcome to the insurer. All settlement options are considered and explored before trial or litigation is embarked upon. For that reason, we regularly use early face-to-face "issues" conferences to establish areas of agreement and to reduce unrealistic claimant expectations. We have found this to be an effective strategy in reaching settlement in challenging cases.
Once the file has been assessed and the initial advice provided, the file is then either retained by the principal or delegated to an appropriate Senior Associate or Solicitor who works under the direct supervision of the principal.
This ensures that clients receive the double benefit of the principal’s experience, and the cost advantages of having the day-to-day work on a file performed at a lower charge rate.
We advise early about whether the use of well-targeted offers can put a plaintiff at risk of costs and use court processes to shorten the life of claims. We have acted in many claims where a targeted offer has not been bettered at hearing by a successful plaintiff, resulting in an advantageous costs order.
In respect of experts, we encourage cooperation and sharing of report fees between similarly placed defendants. When appropriate, this can ensure a joint front between co-defendants, resulting in a strong bargaining position for the defendants, reduced costs and a good commercial resolution. This strategy will be increasingly attractive where Courts are now seeking hot-tubbing of experts, the issuing of joint expert reports and forcing the appointment of a single expert.
At each stage, we undertake a cost benefit analysis, and rather than making unnecessary interlocutory applications we focus instead on the central issues in each case to streamline the handling of each matter and deliver a cost effective, optimum outcome.