People attending mediation to resolve legal issues are increasingly growing as an appropriate first course of action in legal matters, and recognised as such. From 09 March 2020, when instituting proceedings in the High Court both sides are required by the recently added new Rule 41A of the Uniform Rules of Court to specify whether they are willing to mediate the matter, and giving reasons for their decision.
Mediation, as defined by the Rule, is “a voluntary process entered into by agreement between the parties to a dispute, in which an impartial and independent person, the mediator, assists the parties to either resolve the dispute between them, or identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute, or clarify priorities, by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute.
This notice should not be taken lightly, and should be done in good faith, as became evident in one of our recent matters in a Rule 43 application where both sides had delivered notices that they agreed that the matter was capable of mediation, but the other party had insisted on litigating the matter instead. The Judge, on the basis of the notices by both parties agreeing to mediation, referred it to mediation instead.
Both parties had attended mediation previously with a single mediator, before it was abandoned by the other party. Our client wanted to keep mediating the issues, but the other party instituted the divorce proceedings, and then Rule 43 proceedings. Despite the other party not persisting with mediation, they had still delivered a notice that they agreed to mediation after this, and the Judge would not accept any argument against this as it was done after the previous mediation attempt and when issuing summons.
In mediating matters, both sides enter into an an agreement to mediate and the time limits that would usually apply during the litigation are suspended, and mediation is required to be carried out within 30 days of the signature of a joint signed minute recording that the parties are attending mediation. Any disclosures made during mediation are confidential, and cannot be used in litigation later.
Mediation is regarded as a cost-effective way for the parties to try to hear each other on a dispute and to be able to try and discuss and reach settlement. It is acknowledged as being useful by the Courts, not only because it reduces the workload for the Courts. Since some legal rights need to be reserved by instituting legal action timeously, it provides an avenue to avoid extensive legal costs whilst also dealing with the issues.
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Author – Murray Taylor