Mediate Before You Litigate
DISPUTES ARE INEVITABLE
Everyone has a unique perspective. We all have different priorities, beliefs, standards and values. We have different ways of communicating and will interpret agreements or contracts differently.
Consequently, disputes and conflicts are a normal part of life. They arise within families, between neighbours, in workplaces, businesses, government, and within the broader community.
BUT THEY CAN BE RESOLVED
“I’ll see you in court!” is often an immediate reaction when someone is confronted by a dispute. Courts and tribunals are sometimes necessary to settle disputes, but there are alternative, faster, less expensive and more effective dispute resolution processes available in most cases. In fact, most disputes today are settled prior to court through other dispute resolution processes, such as mediation.
MEDIATION – AN ALTERNATIVE DISPUTE RESOLUTION PROCESS
Mediation is an informal dispute resolution process often described as a ‘structured negotiation.’ A neutral third party, referred to as the mediator, facilitates a negotiation between the parties of the dispute by assisting them methodically to identify the causes of their dispute and their respective interests, and to recognise and assess options so that they may reach their own consensual solution.
A mediator may aid a negotiation by asking questions and encouraging an open discussion, and by offering different perspectives and alternative ways of expressing the issues. A mediator may also encourage parties to test the consequences of any solutions that are identified by the discussion. Depending on each situation, the mediator may decide to meet with parties jointly and/or separately and may suggest that further mediation sessions be scheduled if necessary.
If an agreement is reached about any part of the dispute through the mediation process, the details of the agreement will usually be recorded and signed by all the parties before the end of the mediation.
Mediation can be used with litigation, where parties agree, or are ordered by a court, to resolve a dispute by mediation first and only proceed to litigation if the mediation does not produce a settlement.
IS MEDIATION BEFORE LITIGATION MANDATORY?
In the following circumstances it may be mandatory for you to attempt to resolve a dispute by mediation before proceeding to litigation:
- A contract you are party to may prescribe mediation as an automatic dispute resolution process. Provided the dispute resolution clause is sufficiently clear as to what the parties have to do (e.g. by naming mediation or another specific dispute resolution procedure), it will be held to be sufficiently certain and enforceable.
- A court judge may decide, in the early stages of your case, that alternative dispute resolution, including mediation, is likely to assist and can order the parties to attend mediation.
- If you are involved in a family law dispute involving children in most cases, Family Dispute Resolution (FDR) is compulsory.
Even if mediation is not mandatory in your case, the courts still encourage you to use alternative dispute resolution processes as an aid to settle a dispute, and there are many benefits of choosing to mediate over a trial by judge.
WHY CHOOSE MEDIATION?
Regardless of the complexity or number of parties to a dispute, all cases are eligible to be referred to mediation.
There are many advantages of choosing to mediate before litigating a dispute, including the following:
- Time: Mediation is usually a quicker way of resolving a dispute than through a trial.
- Costs: By choosing to mediate the high costs involved with preparing and running a trial can be avoided (including the legal costs you may have to pay to the other party if you are unsuccessful).
- Flexibility: It is possible for a mediator to customise the process to suit your needs.
- Control: Rather than a judge imposing a decision, the parties retain ultimate power over the decision of whether to settle and on what terms. The mediator is actively involved in the process but does not have power to settle or decide who is right or wrong.
- Satisfaction: Because the parties decide and agree on the outcome they are more likely to be satisfied with the result and comply with the agreement (mediation facilitates a win/win rather than a win/lose solution).
- Less stress: Mediation is a less formal and intimidating than appearing in court.
- Confidentiality: Mediation is a private process. What is said is confidential and without prejudice. Even if the matter proceeds to trial the judge is usually only informed of the outcome and not the contents of the mediation.
- Clarification: Even if the matter does not settle, the mediation process usually provides the parties with a better understanding of the issues at hand.
- Consensual: Either party can walk away from the process at any time.
- Forward looking: Mediation is prospective and it easier to maintain a positive relationship between the parties than if the parties were to go through a retrospective and adversarial trial.
WHO SHOULD ATTEND MEDIATION?
If the parties agree to mediate a dispute, a representative from each of the parties involved will need to attend the mediation either with or without their solicitor. Particularly in business disputes, the representative attending should have sufficient authority to negotiate and enter binding agreements and should have sufficient knowledge of the issues in dispute.
HOW TO PREPARE FOR MEDIATION?
Some things to consider before entering into the process include what the issues are in the dispute, what are the facts and the sources of conflict. You should think about what is important to you in any resolution, your interests, and what the other party’s interests may be and what possible solutions you might have to accommodate these.
Before attending mediation you should consult with your lawyer. Your lawyer will be able to advise you as to the legal aspects of your case and whether mediation is the appropriate process to settle your dispute. Your lawyer will also help you think about what your interests are, put the dispute and your interests into perspective, and explore possible solutions.
Set aside a whole day for the mediation as you want to allow as much time as the process takes to benefit from it, and be prepared to listen, speak, be open minded, and make a decision.
If you are a party to a dispute and require advice, please do not hesitate to contact us at Lynn and Brown Lawyers. We have a wealth of experience in dispute resolution and can provide legal advice in a number of areas, including family law, commercial law, employment law and criminal law. We also have a Nationally Accredited Mediator should you require someone to mediate a dispute for you.
About the authors:
This article has been co-authored by Claudia Giovannini and Jacqueline Brown at Lynn & Brown Lawyers. Claudia is currently studying law at UWA and hopes to be admitted as a Perth lawyer in or about 2018. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.