Settling your dispute

Time​

It can take months for your matter to be finalised at court. You will also have to make time to prepare for and attend court.

Money 

If you start a case at cou​rt and you lose, the court will usually order you to pay the costs of the other party. These are called 'professional costs' or 'legal costs'. Likewise, if you choose to defend a case at court and you lose, the court will usually order you to pay legal costs. 

Even if you win the case and the court orders the other party to pay your costs, this might not cover all of your expenses.  For example, you won't be able to claim back wages you lost because you had to attend court and couldn't work.

Stress

Going to court can be stressful, especially if you don't have a lawyer to sort out the paperwork and do the talking in court. Before going to court, it is a good idea to think about the impact that a court case will have on you personally and whether it is worth the stress.

Uncertainty 

In car accident cases, it is not always obvious who was at-fault. If you go to court, a magistrate or assessor will make a decision based on the evidence that is presented. The magistrate or assessor will exercise their judgment when applying the law to the facts, and weighing up the evidence. If you reach an agreement with the other party without going to court, there is less uncertainty about what the outcome will be.

Negotiation is when you try to end a problem or dispute with another person, by reaching an agreement. 

When to negotiate

The first step to negotiating is to think about how you would like to settle (resolve) the dispute, what you think the other party would accept and then suggest a settlement to the other party.

If you were involved in a car accident, you can negotiate by talking to the other party, writing a letter, or both. If the other party is insured and made a claim on their insurance policy, you should negotiate with their insurer. If the other party has a lawyer, you should speak to the lawyer rather than directly to the other party.

Negotiation can take place at any time. You can negotiate about who was at fault, how much damage was caused and when payment will be made.

If you need help negotiating with the other party, you should consider whether to try mediation. This is where an independent third party can assist you and the other party to discuss your issues and hopefully come to an agreement.

Negotiating in writing ‘without prejudice’

Written correspondence with settlement offers, like letters, emails or faxes usually have the words 'Without prejudice' written at the top. This means that the information in these documents can't be used against you in a court hearing. 

You should write ‘Without Prejudice’ on the top of any letter or email containing an offer to settle that you send to the other party if you do not want any of your negotiations to be used against you in court. 

Sometimes you should not write 'Without prejudice' on the top of a letter. For example, if you decide to go to court you may want to show that you made an offer to settle. 

Before you write a letter of offer, you should get legal advice.

Reaching an agreement

Although negotiating with the other party can be very informal, if you are able to reach an agreement, you should write down what has been agreed.

For more information if you want someone else to pay for damages to your car or other losses, see Settling your case, in Making a claim.

For more information if someone else wants you to pay for damages to your car or other losses, see Settling your case, in Responding to a claim.

Mediation is another way of solving a problem. At mediation, you and the other party, with the help of a neutral person called a 'mediator', try to settle the dispute. 

If you were involved in a car accident, you can try mediation to settle the dispute with the other party or their insurer without going to court.​

The mediator can help you and the other party talk to each other and come up with solutions. A mediator will not take sides and cannot give you legal advice.

If you come to an agreement, you can put it in writing and you can agree to make it legally binding. 

Community Justice Centres

Community Justice Centres (CJCs) provide free mediation services in NSW. The staff can tell you if your situation is suitable for mediation. The staff will then contact the other person and encourage them to participate in a mediation session. 

For more information, see What is mediation? on the Community Justice Centres​ website.

If you can reach an agreement about who was a​t fault, how much damage was caused or when payment will be made, you can write down what has been agreed. 

If you and the other party agree to make the agreement legally binding, you can write down what has been agreed as 'terms of settlement'.

Sample: Sample Terms of Settlement - Car accidents

It is a good idea to try and settle your dispute with the other party without having to go to court. By coming to an agreement about who was at fault and who will pay for the repairs to the vehicle, you will save time and money. The court process is expensive, takes up time and money, and the outcome may be uncertain. 

Terms of settlement 

If you reach an agreement​ with the other party or their insurer, it is a good idea to put the agreement in writing. A written agreement is often called 'terms of settlement' or a 'settlement agreement'. 

There is no set form. Your agreement can be handwritten or typed. The agreement must set out clearly what you have agreed with the other party. The ​agreement can include:

• ​​the amount of money to be paid for the repairs to the vehicle or replacing the vehicle and other losses, such as hire car costs
• how the money will be paid, for example by cheque, cash or electronic funds transfer
• the payment of interest on the debt
• payment by instalments and the dates t​he instalments are due
• what will happen if the amount or the instalments are not paid by the agreed date
• a statement that the agreement is made 'without admission of liability'.​

Full and final settlement of all claims

It is important that the agreement covers all the disputes between the parties. You should make the settlement agreement in 'full and final settlement of all claims'. This means that if you agreed to pay someone money to fix their car, they can't later claim against you for something else, like hire car costs.

For more information if you want someone else to pay for damages to your car or other losses, see Making a claim.

For more information if someone else wants you to pay for damages to your car or other losses, see Responding to a claim.

If you are not sure how to settle your dispute, you should get legal advice. ​