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.

Related Articles

View All
Litigation & Dispute Resolution / Property & Development

Interstate Landlords in Victoria – new arrangements in the Magistrates’ Court of Victoria

One of the hassles for residential landlords who own property in Victoria but live interstate has been the lack of...
Read More
Litigation & Dispute Resolution

Freeze, don’t move!…How to freeze assets

You are a creditor, owed a significant sum of money, and you have reason to believe that the defendant is likely to:...
Read More
Employment Law / Litigation & Dispute Resolution

Deliveroo decision creates chaos in the ‘Gig Economy’ as law struggles to keep up

Up until recently, businesses have relied upon ‘gig’ workers being able to be classified as independent contractors...
Read More
Litigation & Dispute Resolution

Winning Civil Cases as a Defendant – TLFC on a winning roll…

In Australia, in our civil system, Plaintiffs need to prove their case on the balance of probabilities   The...
Read More
Commercial Law / Commercial Contracts & Agreements / Corporate Advisory and M&A

Announcing our Promotions

Rob joined us in 2017 and immediately impressed us with his litigation skills and incredible work ethic It’s no...
Read More
Litigation & Dispute Resolution

Transact Now, Regret Later – The Case for Credit Management

This can cover a wide range of business situations Most commonly, you might be considering letting your premises to a...
Read More
Litigation & Dispute Resolution

Playing the man and not the ball: When non-party cost orders are available in Court

When can a party not named as a litigant be responsible for the payment of costs (cost orders) in a legal proceeding...
Read More
Commercial Law / Property & Development / Developments

TLFC Law Triple Finalists in the Lawyers Weekly Australian Law Awards 2019

Celebrating its 19th year, the Australian Law Awards, in partnership with UNSW Law, is the pinnacle of award programs...
Read More
Commercial Contracts & Agreements / Litigation & Dispute Resolution / Not-For-Profits & Charities

Write it in now, or forever hold your peace

All these contracts have one thing in common: you are going to be at a disadvantage if you are relying on any...
Read More
Employment Law / Commercial Law / Litigation & Dispute Resolution

What employers need to know when letting someone go

A staff member may need to be let go because the business can no longer afford them, or perhaps they are just not...
Read More
Employment Law / Litigation & Dispute Resolution / Intellectual Property

Dude, Where’s my Business? High Court Delivers Warning to Employees and Competitors who engage in Dishonest Conduct to Get Ahead in the Game

The case of Ancient Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited [2018]...
Read More