Mediation is an alternative dispute resolution method that can be used instead of going to a trial in Court. When a dispute goes to trial, the Court will make a decision based on the competing claims in the case on the “balance of probabilities”. Mediation, on the other hand, is the process by which an independent and impartial third party (being the mediator) facilitates discussion between the parties to the dispute. By facilitating open and constructive discussion the mediator allows the parties to decide upon a mutually acceptable agreement.
Mediation in litigation
Mediation has now become an important part of the litigation process as most Courts and Tribunals will order that the parties try to resolve the dispute by mediation. At a minimum, even if the parties cannot resolve a dispute at mediation, they can typically narrow the issues in dispute for trial.
Why mediate?
Mediation allows for a wider range of outcomes when compared to traditional Court claims. The mediation process allows for parties to negotiate an outcome which can be beneficial to both sides. The parties remain in control of the ultimate outcome as opposed to a trial where the outcome will be determined by the Court.
The process of mediation costs a significant amount less when compared to proceeding to a trial in litigation. It is also flexible, less stressful and less formal than Court.
Without prejudice
An important aspect of mediation is that it should be conducted on a “without prejudice” basis. That is, the information disclosed during mediation remains confidential and cannot be used in further trials or court proceedings giving parties the confidence to discuss their dispute openly. For example, if one party makes concedes a certain fact during a mediation, the other party cannot rely on concession as an admission of liability.
Outcomes
If the parties are able to reach an agreement and resolve their dispute, the case will not proceed to trial. Often, the terms of the agreement will be recorded in a deed of settlement which will be signed by the parties.
However, if an agreement cannot be reached between the parties, the case will need to proceed to trial. In most circumstances, when parties have gone through the mediation process but have not reached an agreement, the issues at the heart of the dispute may have been clarified. This can lead to a quicker trial through the courts.
Legal representation
Having legal representation throughout the mediation process is beneficial to you as it will ensure that you get the most out of the mediation process. It will ensure that your position is effectively communicated to the other party and the mediator.
ASAP Lawyers regularly accepts instructions to represent parties in mediation as part of the litigation process. We also accept instructions to act as a mediator in disputes where we are not representing the parties. To speak to a litigation lawyer about your matter, contact us on 03 9450 9400.