By Phoebe Langridge

7 November 2018

Before you commence litigation it is important to consider alternate ways to resolve the dispute. You must also consider if you are obligated to engage in mediation before you can sue.

For instance, many contracts and agreements include a ‘dispute resolution’ clause. The dispute resolution clause will typically stipulate that the parties engage in mediation before commencing litigation.

Even if there is no dispute resolution clause, mediation should still be considered prior to litigation. Certainly, once litigation is on foot, all significant Courts and Tribunals mandate that the parties engage in mediation. The Civil Procedure Act 2010 (Vic) also requires the parties to take active steps to resolve the dispute.

The Benefits of Mediation

Mediation provides the parties with a forum to see if they can resolve the dispute. It gives the parties an opportunity to explore how the dispute can be resolved and, if successful, can save the parties from the time and expense of litigation (or further litigation).

At mediation, parties are not confined to a settlement based upon the legal merits of the case and can formulate a settlement by negotiating ‘outside the box’. A mediator is there to assist the parties to reach a resolution and cannot decide or adjudicate on the dispute.

Preparation for Mediation

The success of a mediation is often dictated by the parties being well prepared, ready to negotiate and receiving valuable legal advice. Even the most difficult disputes have the potential to be resolved at mediation. Engaging a lawyer who understands your dispute and can proactively guide you through the mediation process is invaluable.

Good preparation involves preparing an outline of your case, knowing your key documents and giving consideration to the outcome you want to achieve.

Importantly, mediations are always ‘without prejudice’. This means that what is said or offered at mediation cannot be subsequently used in court proceedings or disclosed to the Court.

 

For further information and advice on how Tisher Liner FC Law can assist you with a dispute, please contact a member of our Litigation & Dispute Resolution Team.

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