There is no doubt our Court system, litigation, and the protection and enforcement of rights the Court provides, is essential for business.
Having said this, mediation is a smart way to resolve disputes. It may not work in every case; but it should be tried. Why? A court case will be time consuming, costly, and, more often than not, it will harm relationships. Not only that, a Court imposed solution is unlikely to give you everything you want. A negotiated outcome via mediation gives you some control over the outcome.
There are some other attributes of mediation, such as that it can be organised quickly and an outcome achieved sooner rather than later. Compared to litigation, there is less stress involved. A properly run mediation will allow each side to hear the others views and learn about their underlying interests. A creative solution may be in the offing, not previously having been considered. Decisions can be made on an informed basis.
Maintaining the business relationship and not burning bridges is another very important reason to solve problems alternative to a Judge imposed outcome. Then there is privacy and confidentiality. Most court proceedings are open to the public and everyone runs the risk of reputational damage. Also, if you enter an agreement voluntarily (rather than have something imposed on you) this is more likely to be sustainable and enduring.
Even if mediation does not solve the entire case; it can solve subsidiary issues leading to a more efficiently run hearing in Court. No wonder, then, all of our Court jurisdictions require or envisage some form of alternative dispute resolution – the:
- Northern Territory Supreme Court Practice Direction 6 requires parties to ‘consider whether some form of alternative dispute resolution procedure would be more suitable than litigation…and provide evidence that alternative means of resolving their dispute were considered.’
- Local Court of the Northern Territory may require proceedings to be referred to mediation.
- Northern Territory Return to Work Act makes mediation a pre-condition to commencing Court proceedings.
- Northern Territory Civil and Appeals Tribunal has as one of its objectives to ‘resolving disputes through high-quality processes and the use of mediation and alternative dispute resolution procedures when appropriate.’
George Roussos is a Nationally Accredited Mediator, under the National Mediator Accreditation Scheme (NMAS).