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03 June 2015

Mediation

If you have an action in the Supreme Court, or almost any other court or jurisdiction, either as a plaintiff or a defendant, there is a very good chance that you will proceed to mediation at some point.

Mediation is an opportunity to have a “without prejudice” discussion. What is said during a mediation is confidential and cannot be used by either party against the other if the matter proceeds to trial. It is a chance, particularly for the Plaintiff, (the person who claims to have suffered loss or damage as a consequence of the defendant’s actions) to tell their story and be heard by the other side.

If you are the Plaintiff you should bear in mind that this may be the first time that the Defendant has heard your version of events in any detail and that what you say, (even if it is through your solicitor), at the mediation has the potential to change the defendant’s view on the way they see your claim against them. It is also an important time for you to hear the defendant’s views on why they may see things differently.

If you are the Defendant it may help to remember that the Plaintiff often feels aggrieved and upset about the loss and damage that they have suffered. Revisiting events for the purpose of the mediation can often be emotional for them. The mediation is an opportunity for you to see and hear the Plaintiff.

You wouldn’t be in court unless there was a problem. The goal of the mediation is to identify the issues that are in dispute and to mutually come to an agreement to resolve those matters. Often neither party is thrilled with the results of a mediation but an agreement has been reached that both parties can live with. A mediation is not a forum to “beat” the other side, nor is it an event that you can “win”.

In my experience you will maximise your prospects of achieving resolution, even in the most acrimonious disputes, if you and your legal team (both solicitor and counsel) do two things:

a) Be courteous.

b) Communicate effectively.

Good manners don’t cost anything. Things run a lot more smoothly if both parties show each other basic respect. It has long been recognised that reciprocity is a basic social building block. If the parties can remain courteous towards each other, they have already flagged a willingness to find a mutually acceptable solution.

People often think that communication is the same as oration or speech giving but it is not. A successful mediation depends on good listening and clear, effective delivery of information. If you send but your message is not received, you haven’t achieved communication.

If you want to read more, check out “Good communication Starts with Listening by Nancy Foster” at www.mediate.com and “ Manners and Mediation LIJ”, by Alex Fogarty, Jan/Feb 2015 (adrcolumn@liv.asn.au)

If you think that the other side is litigating for reasons that are not necessarily connected with the alleged dispute and that they are unlikely to want to engage in the process, I would recommend a read of “High Conflict People in legal Disputes” by Bill Eddy, Janis Publications, 2006.

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