How Mediation Works To Reduce Litigation Costs and Delays
Having conducted the prosecution or defence of many complicated commercial disputes and professional negligence claims, I have gained a clear insight into not just the legal issues involved in such litigation, but just as importantly I have a clear understanding of the importance of providing my clients with a clear indication of the various steps in the legal process, and a timeline relating to the various stages that the proceedings will take.
In particular, I emphasize at the outset that prior to any action proceeding to trial it must be the subject of a Court-appointed mediation – I emphasize this to minimize any concerns that the client has got on board a “runaway train” over which they have no control, and to emphasize that it is my policy to avoid going to Court, which in civil proceedings should be viewed as a last resort.
The essential elements of a mediation are as follows:
- it is an informal process and is not to be confused with arbitration where a binding result is imposed upon the parties by an arbitrator;
- the mediation is chaired by an experienced mediator whose role is to facilitate a resolution of the dispute between the parties by reaching a consensus agreement, as opposed to making a binding decision;
- whatever is discussed at a mediation is not to be divulged to any third party, and cannot be introduced in a court hearing except to enforce an agreement reached at mediation;
- Mediators are either Solicitors or Barristers who have undertaken professional training courses in Mediation, and are skilled in diluting the adversarial atmosphere which is part and parcel of the litigation process
- Meditations take place on “neutral” territory, not in a court or the premises of one of the law firms involved;
- Any settlement agreement reached at a mediation is documented on the spot to ensure finality.
To further involve clients in the process I consider that it is essential that communication, whether by letter, telephone or email, occur on a weekly or at most fortnightly basis, with frequent copying of correspondence received from opposing solicitors to ensure that my clients are kept in the loop concerning all relevant developments in a particular action. I inform my clients that they should approach the mediation process as in effect being, “the door of the Court” and my experience is that somewhere in the region of 95% of commercial disputes settle at or shortly after a formal mediation.
To achieve this it is necessary to fully prepare for the mediation and by that time to have evaluated the strength and weaknesses of a particular claim. To this end, it is essential that clients are presented with a detailed analysis of their claims no later than one (1) month prior to a mediation in order that it is possible to discuss settlement options well in advance of the decision making day.
If one undeniably positive factor has emerged in commercial litigation in this State over the last ten (10) years is it is that the necessity for mediation has significantly reduced the prospects of a proceeding going to Court and flowing from this is the fact that a client with a reasonably degree of certainty can be given realistic estimates both in relation to timing and costs. A realistic end point.
I trust this has been of interest and informative. I will in future “backgrounders” like this include a practical example to demonstrate how businesspeople involved in disputes have benefited greatly from mediation and having a lawyer who is not hell-bent on dragging them into court.
For more information please contact Richard Cudlipp (03) 8615 4200.
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