Process Considerations, Templates and Check-lists

There are a number of considerations that need to be understood before engaging in a legal process including available templates, processes and one’s own abilities. Whilst templates can help facilitate remedy – an understanding of the context of it’s applicability in the controversy is also important. For example a template that resolved a $80 parking fine may not provide remedy in higher value cases. Is it worthwhile for an opposite party to spend $2000 to prosecute an $80 infringement? Unlikely. But for a $20k matter – probably. Hence, the context is key. There will be more preparation in these “higher value” matters as it is worthwhile for an opposite party to seek judgement for alleged breaches committed by the Person . For example, a lawyer will prepare a case, undertake research, identify resources to assist, get the paperwork ready etc, the considerations and check-list below is not too different from what is undertaken by legal professionals, but there are some exceptions. Therefore it must be recognised that a “template” approach can provide only a partial answer when there are a wider range of considerations to be explored:

  1. The Silver Bullet. There is no such things as the “silver bullet” template that makes problems “go away”. Whilst templates from other people’s processes provide some guidance on WHAT can be sent to an opposite party, they do not always provide insight on WHY it is being done for a specific scenario and may not provide insight on HOW one should respond via paperwork or in real time when communicating with an opposite party or in court.
  2. Moving Contracts. Contracts can move, meaning that whatever process(es) are used to reach agreement with an opposite party, a contract can become “undone” from ones own actions, inactions or verbal communications. Certain skills will be required to “hold” a contract once in place.
  3. Time. Depending on the extent of the liability to the person, there will be a requirement for study and coaching. Is there enough time for these activities? Can it fit in with a busy schedule?
  4. New Ideas. How accepting is one to new ideas and foundational concepts that one is likely to need, improve upon and work with depending on the process.
  5. Experience. Has one spoken to someone who has successfully use such templates and what were the personal considerations in the learning process.
  6. Costs. What is the cost to use the templates + your time + others time in order to resolve the issue v’s the cost of the actual liability.
  7. Legal Re-presentation. Always an option to consider. To hire legal representation may be easier if these considerations are too onerous.
  8. It’s not Personal. ANY action against one’s Person is a commercial matter. The opposite party will not have corporate “feelings”, although 1 or 2 individuals may imply how they feel for you, a corporation that brings action against a Person is dealing 100% on the commercial side. One will need to be strong enough to handle and resolve the commercial matter(s) without too much emotion taking control and disrupting a process.
  9. And Finally, Come From. What is your come from? Is it a mindset of resolution and harmony by controlling ones new found authority to resolve the matter? Or, one of attacking an opposite party and to inflict harm?

TemplatesA Process is Required, what could my check-list look like?

  1. What is the objective? Understand what the desired outcome is and what skills are required to get there.
  2. Honour. The process should intend for you to remain in honour, hence an agreement between the parties is very important.
  3. The objective is to create a record between the parties that expresses agreement. Selection of an approach that fulfils the objective of due process in order to reach agreement between the parties is key. There are many templates available, but many lack due process, or don’t always include a 3rd party presenter/acceptor in the process and don’t necessarily reach an expressed agreement. An adjudicator wants to see agreement between the parties (if not, one will be made for you),
  4. A 3rd Party Presenter/Acceptor and Custodian of records. This is mandatory requirement in order to successfully obtain a genuine record, failure to have someone secured to handle the management of records may mean the process that is run could be considered hearsay in a court. Whoever is selected must be competent at managing records and is independent to the process being run. This person will Present and Accept communications for you, act as a 3rd party witness and hold a copy of or the original records on file.
  5. Witnesses. At least x2 witnesses to witness signatures on documents. Or alternatively a Justice of the Peace or Notary depending on the process and whether a Public or Private process is undertaken.
  6. Study. What does the study regime look like? Are there people to help review a process? It’s key to plan for a study schedule, especially if going to court. The paperwork is only part of the remedy, much depends on an ability to hold a contract and take control – not leave it for others to do (esp the opposite party or magistrate).
  7. Work through all steps of the paper process first – get a complete process ready up front, it means you’ll be prepared. This would be at a minimum x3 Notices, x3 Certificates of service (by the 3rd Party Presenter), x3 Certificates of non-response/response (by the 3rd Party Presenter).
  8. Conditional Acceptances. One must be prepared to spend time reviewing some conditional acceptances and understand when to use them. NEVER argue, this can undo a contract.
  9. Separate oneself from the Person entity. The Person is a trust organisation. Understand where the person went wrong and be the 3rd party that resolves an issue (a private side approach)

Some exceptions to what a lawyer may undertake; Do not argue with an opposite party, conditionally accept. By arguing, it may mean a 3rd party adjudicator is needed to resolve the matter(s). Many lawyers will argue as it can mean more engagement and more billable hours – This is the complete opposite of one’s objective.