Commercial disputes are an unavoidable reality of doing business. From contractual disagreements to shareholder conflicts, these disputes can threaten operations, reputations and bottom lines if not managed effectively.
With over 25 years of experience in commercial litigation and dispute resolution, it is my experience that while the types of disputes may vary, the strategies for navigating them remain the same. It is all about preparation, trust and professionalism.
What Are the Common Types of Commercial Disputes?
While the nature of commercial disputes vary across industries and contexts, there are some that are more common. At Peterson Haines, we frequently advise clients on:
- Contractual disputes: Disagreements over the terms or performance of contracts, ranging from breaches of payment terms to disputes over service quality.
- Shareholder and corporate disputes: Internal conflicts within a company—often between shareholders or directors—that can destabilise governance and decision-making.
- Debt recovery and insolvency issues: These disputes often involve chasing unpaid debts or navigating financial distress and insolvency.
- Property and leasing disputes: Whether it’s commercial lease agreements or property boundaries, these disputes can have significant financial implications.
- Intellectual property disputes: Protecting trademarks, patents and copyrights, especially in creative and tech-driven industries.
- Workplace and employment issues: Disputes related to employment contracts, dismissals or workplace policies and a common challenge for businesses.
Winning Strategies for Commercial Litigation
Navigating commercial disputes requires more than just legal expertise. It demands a strategic, client-focused approach. These are some of the key strategies we emphasise at Peterson Haines:
1. Understand the Client’s End Goal
No litigation strategy can succeed without clarity on what the client hopes to achieve. Whether it’s a financial settlement, reputational repair or maintaining a key business relationship, knowing the end goal is critical. For this to work, clients must present all documents and information to their lawyer. Trust is essential—without it, lawyers can’t provide advice that aligns with the desired outcome.
2. Understand the Court System and Context
Each case is unique, and the best way to navigate a dispute depends on the players involved, the industry and the nuances of the court system. A strategy that works in a shareholder dispute might not be suitable for a debt recovery matter. Understanding how the courts operate, combined with industry knowledge, is essential to tailoring the right approach.
3. Emphasise Realism Over Morality
One of the hardest lessons for clients is understanding that the law is not about justice in the moral sense. It’s about applying legal principles to resolve disputes. Helping clients focus on achievable outcomes, rather than what they believe is “right,” can save them unnecessary frustration and expense.
4. Cost-Benefit Analysis
Litigation is expensive—not just financially, but also in terms of time and reputational impact. Every client must weigh the costs of pursuing a matter against the potential benefits. This includes considering alternative dispute resolution options where appropriate.
Ethical Considerations in Commercial Litigation
As solicitors, our obligations go beyond advocating for our clients. We have a duty to the court, the legal profession, and the integrity of the process itself. These ethical principles are enshrined in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, which guide our conduct. Among the most important considerations are to:
1. Avoid Conflicts of Interest
It’s critical to ensure impartiality and avoid situations where our personal or professional interests conflict with those of our clients or the court.
2. Maintain Evidence Integrity
The independence of witnesses and the integrity of evidence presented are non-negotiable. Misrepresentation or manipulation of evidence undermines the entire legal process.
3. Consider Proportionality in Costs
Litigation costs must be proportionate to the complexity and value of the dispute. Balancing this is often challenging, but it’s vital to avoid unnecessary burdens on clients.
4. Respect Fellow Practitioners
The adversarial nature of litigation doesn’t excuse a lack of professionalism. Respect and civility toward opposing counsel maintain the integrity of the process.
5. Don’t Be a Mere Mouthpiece
Lawyers must exercise professional judgment and not simply follow client instructions if they are inconsistent with ethical or legal obligations.
Navigating Disputes With Strategy and Integrity
Commercial litigation is rarely straightforward. It requires a combination of strategic thinking, industry knowledge and unwavering ethical standards to navigate successfully. By setting realistic expectations with clients and leveraging Alternative Dispute Resolution (ADR) where possible, we can resolve disputes in ways that protect our clients’ interests while upholding the principles of our profession.
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