Greater knowledge and understanding of mediation hopefully will see greater resort to mediation to resolve commercial disputes before turning to the sometimes slow and often expensive process of litigation.

Early Intervention by Mediation in Minor Claims

Friday, 19 January 2018

Mediation is a structured negotiation process in which an independent mediator assists the parties to identify the issues in dispute, assess options and negotiate an agreement to resolve their dispute.

Mediation is a compulsory first step in many claims within the jurisdiction of the Queensland Civil and Administrative Tribunal (QCAT). QCAT deals mostly with matters of a minor nature.

Early intervention by mediation is appropriate in QCAT claims, and can be equally applicable and potentially advantageous to any other minor claims of a general commercial nature. In the present context a "minor claim" is one where the costs associated with pursuing the matter in Court or QCAT may be near or more than the amount of the claim. It is not unusual for the legal costs associated with even a small matter to be in the many tens of thousands of dollars.

The key to parties accessing mediation early is greater knowledge and understanding of the mediation process by both the lawyers for the parties, and the parties themselves.

There is often a perception that mediation is not appropriate until the parties understand the relative strengths of each party's case and the strength of the evidence to support those cases. However, by the time the parties have investigated such matters and sought legal advice, the legal costs incurred may well make settling the matter difficult. The reason for this is that the parties may not be able to reach agreement on who is to bear the potentially substantial legal costs or if agreement is reached, the "successful" party is left with very little and the "unsuccessful" party, even less, after considering the legal costs incurred.

The key to success in mediation in minor matters is to mediate early and before the parties have incurred significant legal costs. By avoiding spending a significant amount on legal costs (relative to the amount of the claim) before mediation, a significant hurdle to settlement may be avoided.

In many instances, the settlement of minor claims is not a matter of determining the legal position of the parties, but is a matter of finding a commercial resolution. Properly conducted mediation is designed to achieve such an outcome.

Greater knowledge and understanding of mediation hopefully will see greater resort to mediation to resolve commercial disputes before turning to the sometimes slow and often expensive process of litigation.

Please contact partner, Scott Eustace, to discuss whether mediation may be of assistance to you.

Scott Eustace, Partner
Hickey Lawyers
Nationally Accredited Mediator and a Queensland Law Society Accredited Specialist in Commercial Litigation
07 5556 7433
eustaces@hickeylawyers.com.au

Tony Hickey

Our Managing Partner, Tony Hickey, is committed to Hickey Lawyers' constantly innovating, evolving and moving forward. Share our news articles about our latest developments.

Categories

Recent Articles