Mediation and Alternative Dispute Resolution
Litigation in the Australian court system is adversarial in nature: that is, there is a contested hearing in which the aggrieved parties present their opposing positions to the Court. This can be a lengthy and expensive process.
Another alternative to litigation is Mediation, which works in tandem rather than in opposition to the Court system. It is a solution which the Victorian Supreme Court supports positively. The Chief Justice of the Supreme Court of Victoria stated:
“It should be stressed that Mediation is not an inferior type of justice. It is a different type of justice. All studies of dispute resolution show that people greatly value quick resolution of disputes an d the opportunity to put their case in the presence of a neutral person. Mediation satisfies both these requirements.”
Pursuant to Rule 50.07 of Chapter I of the Supreme Court Rules, the Court may at any stage of a proceeding (with or without the consent of the parties) order a proceeding to Mediation. At any time, parties can ask the Court to refer them to a mediator. The mediator can be appointed by the Court, or agreed upon by the parties.
What is Mediation?
Mediation is a process of dispute resolution in which the mediator is neutral and independent. A Mediation can be held at any time suitable to the parties. Mediators can be qualified lawyers, non-lawyers or Court staff.
The mediator brings the parties together face-to-face in a private and confidential setting. The parties inform the mediator of their objectives and the mediator tries to explore options with the parties and search out areas of agreement. These options are generally broader than those that a Court can consider. The mediator does not impose a decision, and any information he or she gains within the context of a Mediation remains entirely confidential.
If the parties resolve their dispute by Mediation, they can make a written agreement to this effect and apply to the Court to have Orders made to finalise their case.
Who pays for Mediation?
The parties share the costs of the mediator. You should talk to your legal adviser about the likely costs of Mediation and other alternative dispute resolution options, and the way in which this would compare with the cost of a trial. Generally, Mediation is cheaper and faster than litigation.
Why have a Mediation?
From the perspective of parties, litigation is costly, time-consuming, stressful and subject to risk. It is better to resolve a matter so as to save money and avoid the risk that time which could be better spent elsewhere is spent in litigation. Mediation also provides parties with certainty.
From the perspective of the Court, trials are costly and time-consuming. Every case that settles before reaching judgment frees up judicial time and Court resources for other proceedings. Settlements through Mediation smooth and streamline the wheels of justice.”
The above is an excerpt from the Supreme Court of Victoria website.
The rules regarding Mediation are the same in the Federal Court. In the Magistrates’ Court, small claims (under $1,000.00) are referred to arbitration and larger claims to pre-trial Mediation.
At Cyngler Kaye Levy Lawyers, we have successfully mediated for many of our clients over more than 25 years.
Resolving the matter at Mediation is a far less expensive method of dispute resolution than going to court and can take considerably less time.
If however, a dispute cannot be resolved through negotiations, we have the experience and expertise to advise and represent clients in the formal process of litigation. We are experienced litigators in both State & Federal jurisdictions. See our Civil Litigation section for more details.
Please do not hesitate to contact our office on +61 3 9500 1722 or email an enquiry.