Category: Litigation

Why Mediate – part 2 – What’s right with mediation.

By Dov Silberman
The advantages of mediation are also well known and documented:

  1. Prior negotiations have failed. Negotiations will already have been attempted by the parties or their lawyers, including maybe round table conferences.  For various reasons, they were unsuccessful.  An independent mediator, a different process of discussion and private sessions during the mediation, can overcome the inherent problems of normal negotiations such as trust, secrecy, giving away your case etc.
  2. You control the flow of information. You can say things to the mediator which the other party will not hear. You control what is said and revealed to the other side. Whatever is said or revealed cannot be used in court.
  3. You get a chance to say what you feel. You can say what you feel in a safe and non-threatening environment.  A skilled mediator will allow you, and the other side, to  release personal feelings in a way that leads to resolution, rather than escalation, of the conflict.  The other side will, often for the first time, really internalise where you are coming from.
  4. The real issues will emerge. A skilled mediator will uncover the real issues of the dispute, which are often non- legal and non-monetary.
  5. Mediation is innovative. It focuses your attention and energy on coming to grips with the real problems of the dispute.  The more information, not necessarily legal, on the table, the better the  settlement prospects.  It encourages you to negotiate creative and  acceptable solutions and agreements not normally found within the litigation process.
  6. You are in control of the process and outcome. You go through the mediation at your own pace.  You and the other side are always on the same page. Both of you ultimately are in control, not only of the outcome, but also the process, so you have to be emotionally comfortable with how it advances. That is why prior arrangements are made so each party is comfortable with the setting, time etc. The mediator does not impose, or even suggest, settlement terms.
  7. Cheapness and cost effectiveness:-
    • Mediation is designed to be short (half to a day)
    • Mediation promotes an early resolution
    • Your litigation expenses, business disruption and emotional traumas are dramatically reduced.
  8. Additional benefits. If appropriate, your valuable business and personal relationships can be preserved or enhanced by skilful mediators.
  9. Mediation is low risk. You can voluntarily accept or reject any settlement. The mediator does not impose, or even suggest, settlement terms.
  10. Preparation for the future. If all else fails, you can still go to court. If the case  does not settle now, then you should know why it hasn’t settled, what the likely future costs will be, and can plan for court and outcomes accordingly

Why Mediate – part 1 – What’s wrong with litigation?

By Dov Silberman

Why does the government and courts want you to mediate?

You are in, or can see yourself getting into, a legal dispute.

The other side is obstinate and pigheaded, completely wrong, and refuses to see that you are right.  You cannot stand the sight of the other person who makes you sick just thinking about him/her, let alone facing that other person.  If you are both in the same room, then you’ll just at the best, get into a slanging match.

Better just to let the justice system take its route, and have a judge decide.

Well, I have news for you – the legal system nowadays forces you to engage in some form of mediation prior to hearing the case.  Only in a few sorts of cases, mainly where the time and  costs of a mediation is not proportionate to the amount of the money in dispute, will a court or tribunal not insist on mediation.

There is one practical reason and one social reason why the government and judges want mediated settlements rather than court imposed judgements in commercial and matrimonial disputes:-

  1. The court’s resources (ie the taxpayer’s dollars) are saved – the government can spend the money on other things. Research around the world and in Victoria (including the seminal 2009 256 page report into Mediation in the Supreme and County Courts of Victoria) show that a huge majority (77- 85%) of cases referred to mediation settle.  Time and resources can now be more effectively utilised
  2. Mediation helps repair the social and inter-personal fabric that has been damaged and torn apart by conflict.  Preserving social cohesiveness is one of the primary purposes of a democratic government. Both parties (taxpayers and their extended contacts – family and friends) ultimately are unhappy with court imposed orders – Justice is a very blunt instrument to solve a dispute. The judge will usually have to award 100% to one side, even if the other side has some valid reasons for acting the way it did.  Thus there will be at least one side that will still be unsatisfied with the decision (leading to the distinct possibility of appeals – thereby incurring more costs and not allowing closure), and the other side will have lost out in unrecovered time, emotional costs, and non-recoverable legal fees.

The disadvantages of litigation are well known and documented:-

  1. Financial Costs.  The huge pre-trial and trial legal costs;
  2. Time. The time it takes to get to trial – years in many instances;
  3. Publicity. The lack of confidentiality, and its sidekick, publicity, during the trial and judgement;
  4. The outcome. The decision is left to a third party, whom you may feel does not fully appreciate your position;
  5. Rules of evidence. Rules of evidence may exclude or limit many things that you think are important;
  6. Loss of control. You personally have little or no say in the process of getting to trial, which can be frustrating to a non-lawyer, or someone not used to the court system; and
  7. Other costs to you. There are huge costs in time, emotions, non-recoverable legal costs and the inevitable diversion of your focus from other parts of your life/business

I will enumerate the advantages of mediation, also in point form, in the next post.