Navigating Mediation

Avid viewers of legal TV and film in WA may be surprised to learn that the vast majority of cases in their state, both civil and criminal, are resolved without a trial. In civil jurisdictions, the court’s increased encouragement of mediation and other pre-trial dispute resolution processes are one of the major reasons why. Though it deprives courtroom drama writers of valuable material, resolution by mediation can save parties significant time and costs as well as the uncertainty and stress of a trial.

Mediation Process in Court Proceedings

Mediation in the court process usually occurs by agreement of the parties or by order of the Court.

Before a mediation, parties are advised by their lawyers as to the different possible outcomes and costs if the matter proceeded to a trial. This enables the parties to weigh up the risks of not coming to a resolution and make informed decisions at the time of mediation.

During a mediation, parties and their lawyers meet before a mediator. Often the appointed mediator is a Registrar of the Court with specialist training and experience in dispute resolution. In private mediation, the parties may choose who to appoint jointly as their mediator. The role of the mediator is to assist the parties in negotiating settlement of their dispute. Unlike a judge or arbitrator, the mediator does not make a binding decision on the parties but aims to facilitate the parties reaching their own, agreed resolution.

Parties and their lawyers typically begin the mediation by making an opening statement outlining their position and objectives. The mediator then guides the parties through negotiations to generate solutions to the dispute.

There are different styles of mediation to suit particular circumstances. For example, a shuttle mediation is where parties remain in separate rooms and the mediator  “shuttles” between them to help get an agreed result. This may be appropriate in instances where one party has alleged violence against the other or has safety concerns. It can assist in de-escalating the parties’ conflict to create an environment that will encourage negotiations and ultimately, a final agreement. No matter the style of mediation used, the overarching aim remains the same.

Prior to and during mediation, the mediator may speak to the parties separately and confidentially to gauge whether there is common ground and any prospects of resolution.

Mediations can run for many hours but if it becomes apparent that an agreed solution is not going to be reached, the mediation will conclude.

After Mediation

If the parties come to a resolution at mediation, their lawyers will usually draft a deed or agreement confirming the terms of settlement for the parties to sign and provide to the court for proceedings to be dismissed.

If the parties do not resolve their dispute at mediation, the court will program the matter to  the next stage of proceedings, which is often trial. Even if the matter does not wholly resolve at mediation, the mediation process itself is useful in getting the parties to consider their points of difference, and key goals and interests in the proceedings. Discussions at mediation can lead to a resolution of interim matters in contention, thus narrowing the issues in dispute to be addressed at trial. This in turn helps the parties reduce the costs that will be expended during court proceedings.

Mediations are generally confidential meaning that topics raised by one party during a mediation cannot later be used against them by the other in court proceedings. Conducting mediations this way allows the parties to negotiate more freely and be open to compromise. Parties can continue to negotiate after a mediation takes place and agree to resolve the dispute at any point during the proceedings to avoid the expense of a trial.

MGM O’Connor Lawyers are experienced in assisting and representing clients through the mediation and litigation process. You can contact us on (08) 9221 4333 or by email at lawyers@mgmo.com.au

References

Department of Justice, Statistical Summary 2016/17 to 2020/21 (Summary, 2021) 7

<https://www.wa.gov.au/system/files/2021-11/Statistical-Summary-2016-2021.pdf>

Department of Justice, Report on Civil Cases in the Magistrates Court of Western Australia 2016/17 to 2020/21, (Report, 2 November 2021) 10

<https://www.wa.gov.au/system/files/2021-11/Magistrates-Court-Civil-Report-2016-2021.pdf>

Department of Justice, Report on Civil Cases in the District Court of Western Australia 2016/17 to 2020/21, (Report, 2 November 2021) 8

< https://www.wa.gov.au/system/files/2021-11/District-Court-Civil-Report-2016-2021.pdf>

Supreme Court of Western Australia, Annual Review 2017 (Report, 2017) 9

<https://www.supremecourt.wa.gov.au/_files/Annual_Review_2017.pdf>

Department of Justice, Report on Criminal Cases in the Magistrates Court of Western Australia 2016/17 to 2020/21 (Report, 2 November 2021) 5

<https://www.wa.gov.au/system/files/2021-11/Magistrates-Court-Criminal-Report-2016-2021.pdf>

Department of Justice, Report on Criminal Cases in the District Court of Western Australia 2016/17 to 2020/21 (Report, 2 November 2021) 5

<https://www.wa.gov.au/system/files/2021-11/District-Court-Criminal-Report-2016-2021.pdf>