Did you know that approximately 90% of lawsuits are settled out of court?
We all know how stressful it is when you have a dispute with another party; especially when it has a financial impact on you or your business. The first thing that occurs to you is the stress factor. The next thing that probably crosses your mind will be the cost involved; is it worth it?
Yes, approximately 90% of lawsuits are settled out of court; many of them at the “eleventh hour”. This is, of course, after huge quantities of time and money have been spent in preparation; often over months or years. Personally, we think there are a number of reasons for this. The main ones would be that it is not in the lawyers’ interest to turn down profitable work and the client is not aware there is a real alternative.
The cost of commencing litigation should be enough to make you reconsider your choices. You need to consult your lawyer to advise your wishes, the lawyer prepares the forms, court fees, cost of lawyer attending the initial hearing, etc. are just a start.
A client of ours was a few days away from attending his Administrative Tribunal (VCAT) dispute resolution session. It was a fairly complex case, with possible criminal activity involved as well. He thought that it might be a good idea to call his barrister “friend” to see if he would accompany him to his two-day hearing. His “friend” quoted him $30,000 (unbelievable)! He contacted us to attend with him instead. We received everything he wanted from the mediation.
The secret to keeping those stress levels down (and cost) is through Dispute Resolution, NOT LIGITATION. Dispute resolution can entail a variety of methods.
- Negotiation by speaking or writing to reach an agreement.
- Mediation which means having an impartial person to help the parties resolve their dispute, i.e. VCAT, QCAT.
- Facilitation is the same as mediation but an impartial facilitator is used for groups which are in conflict (such as body corporate disputes, planning disputes)
- Conciliation involves the assistance of an impartial conciliator who has experience in the matter in question and who can offer advice as well.
- Arbitration is a more formal hearing process with an independent third party arbitrator participating. This is often the result of failed negotiation in industrial or contractual disputes between businesses. Unlike the above choices of dispute resolution, the Arbitrator will impose a decision about how the dispute will be resolved. His/her decision will be binding. However, it can possibly be appealed in the Supreme Court.
Don’t make the mistake of not considering this Dispute Resolution method early on in the peace. It could save everyone a lot of anguish, money and time.
In the course of an actual mediation, a good mediator might do every one of the following things, in roughly the following order:
- urge participants to talk to each other;
- help them to understand the nature and objectives of mediation;
- carry messages;
- help the parties agree on an agenda, or, failing that, set an agenda; provide a suitable environment for negotiation;
- maintain order;
- help disputants understand their problems and the source of their conflict;
- defuse unrealistic expectations;
- help participants develop their own proposals;
- help them negotiate; suggest solutions; and, finally,
- persuade them to accept a specific resolution.
Approximately 25% of people are choosing to represent themselves.
There has been a huge increase in people representing themselves : probably in part due to the lack of legal aid available, sometimes due to lack of funds and sometimes people have the confidence and the determination to ‘give it a go’. There is great satisfaction in learning how to do things yourself – and succeeding. I can remember the number of DIY projects I have done around the house (often using You Tube). The gyprocking was something I was particularly proud of.
Not everyone can attend a mediation session and stay objective (which is the reason for the mediator). The secret is to strategically know when to speak and when to keep quiet. We can assist you with (and possibly attend) the dispute resolution process relating to your issue. Alternatively, we can assist you with writing a compelling argument to put forward as part of your claim and guide you through the process, forms and what to expect. Either way, the cost is very reasonable and you will feel more confident going into the mediation.