Mediate or Litigate

In the UK the former Lord Chancellor, Lord Falconer, has predicted an explosion of ‘mega-litigation’ in the aftermath of the collapse of Lehman Brothers. Delivering the keynote speech at the Legal Week Litigation Forum in London, Falconer said the demise of the US’s fourth-largest investment bank would be a turning point for credit crunch-related litigation, unlocking a flood of cases.

“There is going to be litigation on a scale that we have not seen before,” he told the conference, predicting the emergence of “a new era” for litigation and dispute resolution.

What does this mean for Australia and litigants? Mediation must considered as not just an option but as a necessity. People will not be able to afford to litigate. It is something some lawyers will resist due to impact on fees but ultimately they will not have any choice.

What it means for mediators is to become skilled in negotiations when both parties are reluctant participators and don’t want to compromise. Increasing the pie of options for resolution will need to be explored. A new type of mediation may emerge. Settlement negotiations at all costs. Litigants simply will have to resolve the dispute or face enormous financial pressure.

Divorce Mediation

Should you have to divorce, you should consider mediation as it allows the parties to reach their own agreement with the assistance of a neutral third party.

Divorce can be stressful and mediation can assist in equalizing the power imbalance between the parties.

What used to happen

Legal proceedings are usually instituted which required appearing in court with your lawyer. After many months, you ended up going to court and having a judge make the final decision. Documents have to be prepared and your financial affairs disclosed and scrutinized. It was also a very costly process.

What can happen NOW

Before considering any court proceedings, a mediator can be appointed and work through all of the issues with both parties. Lawyers can be present, but it is not always necessary.

It is a voluntary process which empowers both parties, as unless both parties are willing to negotiate, settlement can not be reached. So there are a very good prospects of an early resolution. When agreement is reached, both parties engage lawyers to draw up a final agreement which is then full and final and binding on the parties.

The process is confidential and the mediator will assist both parties to move towards a settlement. Usually this is in a very relaxed and problem solving manner. The mediator has a variety of skills including intercommunication skills and legal knowledge.

The most important skill of the mediator is the ability to allow the parties to think outside the square. The mediator doesn’t take sides and encourages the parties to reach their own agreement.

When do you mediate.

Mediation can occur at anytime. Certainly the earlier it begins the better as you avoid the dispute commencing in court and incurring unnecessary expenses.
Selecting a Mediator

Mediation in Australia is changing. All mediators will now need to have be nationally accredited. This is a welcome development as up until now skills and qualifications and experience of mediators were scattered through various agencies. Each agency had there own standards. It has taken a long time, but now there is now one recognized standard. I predict that the large number of mediators list in the various panels will reduce. Only accredited mediators will be able to be listed. There will therefore be a sorting and vetting process over the next couple of years. When looking for a mediator, look for a nationally accredited mediator. You can find them through your local law society.