Mediate to litigate?

Updated: Feb 22, 2020

Settle, settle settle ...

A dispute can be resolved more quickly through mediation than through a trial. Most negotiations take less than a day. With mediation, there is no decision on the merits and the parties cannot be forced to reach an agreement. The mediator may, however, offer views on the benefits of the case, usually privately to each party. A skilled mediator can ascertain where there may be scope for compromise.

Can we talk about this...

Based on the contemporary practice of Western Australian courts (from Magistrate to Supreme Court), parties are required to mediate at the close of pleadings. The mediator will be inclined to advise parties to settle on the basis that (i) the costs of litigation can overbearing to most litigants and (ii) the value of the dispute may not be proportionate to the costs likely to be incurred.

Often legal costs spike as soon as parties did not mediate successfully. Lawyers will immediately advise clients to discover relevant documents; hence significantly more time will need to be spent as part of trial preparation. Depending on the factual scenario of each case, the extent of discovery can be time-consuming. See our article "What documents do I give to my opponent in civil litigation".

“Legal costs spike ...”

Effective Legal Representation

Mediation is a confidential process (this should be expressly agreed if not implied) and without prejudice so that the communications could not be raised in subsequent litigation if no settlement reached. Lawyers representing the parties must prepare for the mediation meeting, albeit most of the facts remain contentious. (p.s. Ordinarily, if circumstances are unambiguous, the party relying on these facts would apply for summary judgment.) Relevant issues must be succinctly ventilated and put forward for a meaningful discussion.

Whether you initiate legal proceedings against another party or defend a claim, you must understand the issues raised and the effects of any terms of compromise. If a settlement term relates taxation, you should adjourn the negotiation pending tax advice. Effective legal representation requires a rational mind without condescending the counterparty.

If it does not settle, the parties can arrange a subsequent mediation and put an offer for acceptance. Above all, mediation is only useful when the parties negotiate in good faith and acknowledge that there is always room for their respective positions to be compromised. It is not a case of winner takes all.


Series 001022020 | © J Lee, LLB. LLM. Senior Associate. DISCLAIMER: The above article does not take into account your situation/circumstances and is for general reading, hence should not be relied upon if you are dealing with a legal issue or matter. We urge that you contact our legal team for appropriate advice.

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