Abraham Lincoln once said "discourage litigation.
Persuade your neighbours to compromise wherever you can". In
addition to being a president he was also a lawyer so he understood
that mediation can sometimes be a good alternative to
Mediation can be as formal as an independent mediator being
appointed to work with the warring parties to get them to come to
an agreement on a particular date. Each party prepare for a
mediation, much like it is an actual hearing. However, people feel
a bit free to speak their mind as they are not being cross
examined. Things said in mediation are privileged – which
means it cannot be used against you in a hearing. For these
reasons, a mediation is often less stressful than a day in Court.
So consider trying mediation before litigation.
Bear in mind that once you commence proceeding, many judges will
order parties to attend a mediation. For some types of claim, such
as a Family Provisions Act claim, it is compulsory before a
hearing. Various types of mediation are also compulsory in Family
Law. But note – you cannot be ordered to agree to any offers
the other party might make, you are only ordered to attend.
It's important to make sure any agreement to settle is written
down, signed and capable of being enforced. For example, if company
A owed company B money, you cannot reach a binding agreement that
Company C will pay that debt (unless of course company C agrees to
it). Your solicitor will include a number of terms that will make
your agreement enforceable. If you are already involved in
litigation, any agreement can be placed into Orders that the Court
will then stamp, acting as though you had a judgment in the
An agreement can also come about in an informal way – such
as both lawyers chatting over the phone about a resolution with
each call getting closer to agreement. Whichever method is tried,
both parties need to be prepared to engage in the mediation process
and at least try to resolve their dispute.
One key benefit of mediation is that the parties have agreed on
the resolution themselves, so it is often more practical for their
own particular circumstances. It is often easier to re-establish a
commercial relationship after a mediation, rather than dragging
someone through a hearing.
Sometimes people simply cannot agree on anything and mediation
will not achieve a resolution. Other times, a dispute is of a
highly technical nature requiring expert evidence and novel legal
arguments. Again, these matters may not be suitable for mediation.
Even though litigation is often expensive and stressful for many
businesses it goes hand in hand with doing business, hopefully only
on an occasional basis.
Whether or not your dispute is resolved at mediation or you end
up running a full blown hearing – you must have legal
representation skilled in preparing your evidence and presenting it
to the Court to ensure an enforceable outcome.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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