Lawyers are often stereotyped as being interested in prolonging an expensive Court action. However, more frequently the contrary is true.

Lawyers understand that Court cases are expensive and that clients can be concerned with the significant legal costs associated with litigation. Lawyers who are invested in maintaining long standing relationships with their clients will often try to resolve disputes commercially or recommend alternative dispute resolution options such as mediation.

Mediation allows parties to remain in control of their own disputes and outcome while facilitating parties to tell their side of the story to the other party and the mediator.

What exactly is mediation?

Mediation is a process where a neutral third party (the mediator) helps two or more parties to resolve a dispute. It is a voluntary process, and the mediator does not have the power to make a binding decision.

Mediation is different from going to court in a number of ways. It is a less formal process, and it is focused on helping the parties to reach an agreement that they are both happy with. Mediation can also be more confidential than going to court.

Mediation can be used to resolve a wide range of disputes, including commercial disputes, family disputes, and workplace disputes. It is often a good option for people who want to resolve their dispute quickly and efficiently, and in some cases want to maintain a positive relationship with the other party.

When parties should consider mediation

Parties should consider mediation when:

  • They want a quicker and cheaper resolution than arbitration or litigation.
  • The dispute is complex or involves multiple parties.
  • They want to keep their dispute private and confidential.
  • They want to reach a solution that is agreeable to both parties.
  • Mediation can be used before, during, or after arbitration or court proceedings.

In circumstances where privacy and confidentiality are important, mediation enables parties to preserve these rights without public disclosure. This often leads to more satisfactory outcomes for both parties.

Advantages of mediation

There are many advantages, in summary, these can be described as:

  • You get to decide

The responsibility and authority for coming to an agreement remain with the people who have the conflict. The dispute is viewed as a problem to be solved. The mediator doesn’t make the decisions, and you don’t need to “take your chances” in the courtroom.

In doing this, however, naturally, you need to understand your legal rights so that you can make decisions that are in your own best interests.

  • The focus is on needs and interests

Mediation examines the underlying causes of the problem and looks at what solutions best suit your unique needs and to satisfy your interests.

  • For a continuing relationship

Colleagues, business partners, and family members have to continue to deal with each other co-operatively. Going to court can divide people and increase hostility. Mediation looks to the future. It helps end the problem, not the relationship.

  • Mediation deals with feelings

Each person is encouraged to tell their own story in their own way. Discussing both legal and personal issues can help you develop a new understanding of yourself and the other person. You are encouraged to see things from the other person’s perspective.

  • Higher satisfaction

Participants in mediation report higher satisfaction rates than people who go to Court. Because of their active involvement, they have a higher commitment to upholding the settlement than people who have a judge decide for them. Mediations end in agreement about 80% of the time and have high rates of compliance.

  • Informality

Mediation can be a less intimidating process than going to Court. Since there are no strict rules of procedure, this flexibility allows the people involved to find the best path to agreement.  Although it is normal for any dispute resolution to be taxing emotionally, mediation is a process that is much less confronting and is conducted in a much more comfortable environment than litigation.

  • Faster than going to court

Years may pass before a case comes to trial, while a mediated agreement may be obtained in a couple of hours or in sessions over a few weeks.

  • Lower cost

The Court process is expensive, and costs can exceed benefits. It may be more important to apply that money to solving the problem, to repairing damages, or to paying someone back. Mediation services are available at low cost for some types of cases. If you can’t agree, other legal options are still possible. Even a partial settlement can lessen later litigation fees.

  • Privacy

Unlike most Court cases, which are matters of public record, most mediations are confidential.

Where mediation is not the solution

Mediation is not a guaranteed solution to every dispute. It is possible to invest time and money in mediation and still end up going to court. Ultimately, the decision of whether or not to mediate should be made in consultation with an experienced lawyer.

Mediation is not suitable to every dispute. For example, mediation is not appropriate when a court remedy is necessary such as an injunction or seeking specific urgent Court orders.

It is also important to remember that the mediator cannot impose a binding decision on the parties. Therefore, even after mediation, the matter may still be unresolved, and you may still need to go to court. (This is why it is important to carefully select a mediator.)

Fundamentally, mediation rarely produces a satisfactory resolution unless both parties to a dispute are committed to finding a resolution

Conclusion

Mediation can be a cost-effective and time-saving alternative to court, and it can also be less emotionally stressful for the parties involved. It is suitable for people who are willing to communicate with the other party and attempt to better understand and settle their dispute with the help of a trained third party.

 

To find out more call us on 02 9221 1088 or email info@slaterandelias.com.au.