Mediation

This just means that there is an argument between two or more persons, companies or entities which need something done to resolve it. There are two main paths of Dispute Resolution which can run independent of each other or be combined. We can assist you in either of the paths. These paths are:

Court-Based

This is the traditional method of dealing with disputes. One party issues a summons out of a court of competent jurisdiction against the other party calling him to court. The Claimant must prove his case in court against the defendant and the defendant gets the opportunity to defend their case and even to counterclaim. Prior to the hearing of the matter at trial there are multiple intermediate steps to be taken by the parties to make the matter ready for trial.

Detriments:

  • A final order (subject to the possibility of appeal) is given with the ability to use the court’s enforcement mechanism to enforce your judgement and get paid.
  • You can force your opponent to come to court.

Benefits:

  • Long drawn out and expensive process (depending on the court can be up to two years before resolution and cost you tens if not hundreds of thousands of dollars out of your pocket before you recover anything).
  • Because of the difference in court tariffs and actual Solicitors costs you will only recover about 60% of your cost outlay against the other party if you are successful.
  • If you are not successful (and that is always possible in litigation) there will be further added insult to injury of you having to pay a cost order in favour of the other party.
  • Success in the trial does not necessarily mean you are getting paid as your opponent may be the proverbial man of straw with nothing to execute your judgement against or recover your cost order against.
  • The process is so adversarial that there is very little chance of a continued relationship between the parties after the judgement.  .

 

Alternative Dispute Resolution and Mediation

The parties agree to attempt to resolve the dispute with the help of the mediator who explores the background and elements of the dispute and encourages the parties to work towards a settlement both parties, if not happy with, can live with

Benefits:

  • Not a prescribed series of procedures that has to be followed so a lot faster.
  • Costs are based on the time the mediator spent not on the time spent by two law firms and a judge in procedural hearings and trial. The costs are therefore between 10% and 20% of the cost of a court-based approach. (Lawyers can however still be involved in complex mediations which does make a difference in costs though it does remain substantially lower than the court based approach).
  • If mediation is successful a binding agreement between the parties will be entered into.
  • Because the process is more conciliatory and less adversarial it does not leave so much bad feeling and is more suitable where the parties for some reason or other needs to maintain a relationship, be it commercial or personal, with one another (e.g. parents of children in Family Law context).
  • The principle is that the parties, with the mediators help, contribute to finding a solution with the result that there is not really a winner and a loser as in the court-based approach.
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