What a Lawyer can do to help
There are many tasks which a lawyer may assist with. This can range from receiving one-off legal advice on your available options, prepare or assist you with your documents, or representing you in court.
There are differences between legal information, legal advice and getting representation. Lawyers can assist with any of these areas depending on their capacity and specialisations, however each incur their own costs and benefits.
It is important for you to understand these differences to make sure you get appropriate and relevant assistance which meets your needs.
Differences between a practising and non-practising lawyer
A non-practising lawyer has completed a law degree but may not have completed the requirements to be admitted or may not hold a valid practising certificate. They are unable to provide legal advice under the law that governs the legal profession in Western Australia.
A practising lawyer is a lawyer who has been admitted with approval from the legal practice board of Western Australia. They hold a current and valid practising certificate and have met the requirements to be admitted including:
- Recognised academic qualifications;
- Completion of Recognised Practical Legal Training (PLT); and
- Be a fit and proper person.
A practising lawyer is able to provide legal advice under the law. It is important to go to a practising lawyer for valid legal advice. The Legal Practice Board of Western Australia can confirm if a Practising Lawyer is admitted to practice law in Western Australia.
Legal information is any information which is informative on legal issues and topics. It can be found through resources available on the internet, at public libraries, and through lectures and seminars. However legal information will not be specific to your circumstances and does not constitute legal advice. It may however, provide you with an understanding to the background to your matter. Most resources are available for free, but be wary of individuals who are not lawyers providing specific legal advice.
Generally Lawyers do not provide advice online, however they may send correspondence online. The Law Society of Western Australia has produced this factsheet on unlawfully engaging in legal work.
Resources which are available online include:
- Legal Aid Western Australia
Legal Aid’s R U Legal online resources
- State Law Publisher
- Law Reform Commission of Western Australia
- Commonwealth of Australia Law
- Australasian Legal Information Institute
- Australian Law Reform Commission
Legal Advice includes where a lawyer will go over your matter and explain the options available to you, and the law specifically to your unique situation. There are many cost effective services which can provide low-fee legal advice for 30 minutes and are usually provided by your local Community Legal Centres. Many legal matters and options can be explained within a single appointment with a lawyer for a one-off fee. However if you have multiple or a complex legal problems, you may need multiple appointments. Writing letters and correspondence to other parties, or completing forms or documents constitutes further legal services and usually incurs additional charges. You should always ask your lawyer to explain extra costs.
Representation can include when you are seeking a lawyer to act for you in court, in an alternative dispute resolution process or even representation in a negotiation of a contract. This can mean that the lawyer will speak on your behalf on your instructions, to attempt to resolve your legal matter. Before a lawyer provides representation they usually require you to meet them. Representation may be costly, however representation by a lawyer is not compulsory and you may elect to self-represent.
Benefits of receiving Legal Advice*
Legal advice may be sought at any point of a dispute, or even before a dispute has even commenced.
Some individuals seek advice to become aware of their options before entering into an agreement, while others seek advice to have a look over their legal documents, for example, an employment Contract or Will.
Lawyers are highly-trained professionals who can guide you through the potential pitfalls of the law in Western Australia. They understand the complexities and consequences of the law and often find alternatives to resolve your issue that you may not have considered.
Examples of when legal advice may be sought include: buying or selling a house, help with starting a new business, or protecting your wishes by drafting your will.
Managing legal issues without the expertise of a lawyer can result in unforeseen or high financial costs due to the potential for errors.
Where a Lawyer cannot help
A lawyer cannot act for you in every Court and Tribunal, however a lawyer may still be able to provide you with legal advice on your available options or assist you with how to conduct yourself within a proceeding. They may also assist in preparation, such as confirming what documents are required or assist in filling out forms. It is recommended to check with a lawyer to confirm whether if they may be able to represent you and how they may be able to assist.
Examples of where a lawyer may not be able to assist include:
- If your matter has no legal merit;
- If you have received previous legal advice for the same matter;
- If you have another lawyer acting for you already;
- If you are seeking representation for Minor Claims*;
- If you are seeking representation in certain tribunals*; or
- Certain alternative dispute resolutions in certain jurisdictions;
*Please note there are special circumstances which allow for lawyer representation in these proceedings including certain disabilities, or a requirement of a translators or interpreter.
Differences between Non Litigious and Litigious matters
Some legal matters and legal issues are not litigious. This means that the matter may be dealt with outside of court proceedings or tribunals.
Examples of non-litigious matters (but not limited to) include:
- Making a will or electing an enduring power of attorney;
- Buying a home, unit or apartment;
- Writing a letter of demand; and
- Some neighbour disputes, such as dividing fences.
To address a non-litigious matter, seek legal advice from the appropriate lawyer and they will be able to assist you with your options.
Alternative Dispute Resolution (ADR)*
ADR is the term used to describe the alternative mechanisms which exist outside of court proceedings.
ADR is often the best alternative to court proceedings, potentially saving money, time and the emotional toll of litigation. It can also be ordered by a Court to initiate ADR prior to attempting litigation.
There are four main types of ADR:
- Arbitration: uses an independent arbitrator to act as a judge and make a binding decision.
- Mediation: is where an independent and neutral person such as a lawyer helps the parties work out the issues in dispute, and come up with an acceptable solution.
- Conciliation: is a process in which the parties to a dispute, with the assistance of a neutral person, identify the disputed issues. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative one.
- Negotiation: involves both parties and their legal representatives signing an agreement to reach a settlement without resorting to litigation.
Arbitration offers a flexible and efficient means of solving disputes and provides a decision which is legally binding. The parties present their arguments and evidence to an independent third party (an arbitrator) who gives a binding determination, called an award. Issues suitable for arbitration are: financial matters; property settlement; and spousal maintenance. If arbitration is the preferred method to resolve disputes, an arbitration clause is usually included within the initial agreement or contract.
Mediation is often utilised to settle disputes without going to court. A mediator is an impartial third party who will guide you through a structured process to assist in the resolution of your dispute. It is up to the parties to reach an agreement and decide what is included within that agreement. Parties undertaking mediation may choose to either accept the agreement or disagree if they are unhappy with the terms reached or the suggested outcome. Agreements reached may not be legally binding so care needs to be taken about the terms and agreements relating to the mediation.
Mediation may save considerable time, legal fees and court costs for parties and for the community.
Unless directed to mediate by a Court or Tribunal or is required under the terms of a legally enforceable agreement, mediation is a voluntary process. If an agreement cannot be reached through mediation, the parties may then choose to take the matter to Court.
When is mediation compulsory?
Some Courts and Tribunals have compulsory dispute resolution procedures. For example, in Western Australia the Family Court requires compulsory mediation in custody/parenting matters. Court proceedings at the Federal Court of Australia or the Federal Circuit Court can only commence if parties have taken genuine steps to resolve their disputes, such as criminal, civil penalty or appeals.
Alternatively some commercial agreements require the parties to mediate in good faith before commencing legal proceedings.
How does an ADR specialist practitioner charge?
Most ADR practitioners charge an hourly rate which can vary depending on their experience as an ADR specialist, the complexity of the law governing the dispute, and the area of practice. Like any other legal service, you may approach an ADR practitioner to negotiate their hourly rate or a lump sum fee.
How do I prepare for a mediation or arbitration?
Matters that should be addressed during preparation include:
- understanding the process which will be followed;
- identifying your needs, rights and responsibilities;
- preparing your opening statement;
- obtaining legal advice about what factors would be considered by the court including the worst, best and alternative outcomes of your dispute;
- looking for alternate ways to achieve your desired outcome;
- considering the likely reaction of the other party and ways to overcome their objections and concerns; and
- preparing to approach the mediation with an open mind, willingness to negotiate and to compromise.
It is common in complex disputes for a meeting to be held before the mediation session to assist the parties and to establish a timetable for the exchange of documentation. Parties will be asked to sign a mediation or arbitration agreement prior to the commencement of the resolution process.
I have concerns regarding the other party
If you are concerned by the way the other party may behave, or you have been a victim of violence at the hands of the other party, it is best to notify the mediator or registrar conducting the proceeding as soon as possible. They can conduct the proceedings in a manner which allows for your safety including the use of private meetings.
What is my role in the mediation or arbitration?
State your case clearly and succinctly. Listen to the other side, remembering that if your dispute goes to court you will not have the opportunity to negotiate. Look for options that may benefit both sides and comply with the directions provided by your mediator or arbitrator. Be willing to cooperate and be prepared to reach an agreement with the proceedings.
Why are private meetings part of the mediation/arbitration process?
Private meetings are used for a number of reasons. They may provide the parties with a break from any tension and a chance for each party to give confidential information for consideration.
Private meetings can happen at any time during the proceeding and at any frequency. Anyone present in the proceeding can request a private meeting. Some parties may become concerned when the other side requests a private meeting, however it is a normal part of the process.
Tribunals are an alternative method to the Court process which allows for your matter to be decided. It is legally binding in the same way as any matter which goes through the Court process. Tribunals are generally more cost effective, more efficient and less intimidating than going through the Courts.
State Administrative Tribunal (SAT)
The primary place for the review of decisions made by Government agencies, public officials and local governments. is the State Administrative Tribunal (SAT). The SAT deals with a wide range of areas, including: Guardianship and Administration; Building Disputes; Vocational Regulation; Commercial Tenancy; Local Government Decisions; Town Planning; Strata Titles; Residential Parks; Equal Opportunity; Working with Children Checks; Gender Reassignment; Adoptions; Mental health Appeals; Resources; Land Valuation and Tax; and Heritage Decisions.
The overarching process followed at SAT requires you to lodge an application. On acceptance of your application the next step may be either all or one of the following:
- a directions hearing to decide how to move forward;
- a final hearing to hear the parties’ arguments; or
- a final decision based on the documents without a hearing.
A directions hearing is usually held within a relatively short timeframe of the application being received. At a directions hearing, the matter may be scheduled for:
- another directions hearing;
- a compulsory conference; or
- a final hearing.
Decisions made at a SAT final hearing can be appealed on questions of law, subject to some exceptions.