Dispute Resolution - Mediation – a Better Way

Disagreements between traders are common place events but because so many are amicably resolved they are not regarded as a major hazard. It is not until there is a serious dispute, usually of a relatively complex nature and often involving money or contractual obligations, that the small business owner runs into difficulty.

This is when the parties to the dispute need to step back, take a deep breath and ask themselves the following questions:

Is my position absolutely correct, and does the other party have no legitimate point of view?
Am I prepared to concede that at the very least, the other person may have something to say that might possibly be worth hearing and that may require me to take a slightly different position?
If I am not prepared to negotiate, am I willing and able to enforce what I believe to be my ‘rights’ in a court of law?
What would happen, if by some strange quirk of fate, a court found against me?
How much of my time will be taken away from running my business to deal with a court-determined resolution?
Am I looking for justice or a fair commercial settlement of what is, in reality, a commercial matter?

Once these questions have been answered it will, in the majority of cases, be apparent that a NEGOTIATED SETTLEMENT will provide an infinitely better result than litigation through the courts. Certainly it may be necessary to swallow a bit of pride, but then the other person may have to do the same.

Provided there is a willingness to listen to the other point of view and to give a little ground, the chances of success are good, and this is where a trained, independent mediator can help.

Here are some pointers about mediated settlements:

The mediator’s role is to help the parties to a dispute come to an acceptable resolution.
A mediation can be arranged at short notice and costs are low starting from approximately $250. By comparison, the court process is lengthy and can be very costly.
Both parties in the presence of the mediator have the opportunity to present their respective points of view.
If the mediator considers that it is desirable to have a confidential discussion with one or both of the parties then this will be arranged.
Any documents relating to the matter in dispute may be presented to the mediator, and any person who is able to provide any information concerning the matter in dispute may be called to the mediation.
Information disclosed to the mediator is confidential.
Once the matter has been resolved, the mediator will provide a formal agreement for signature by both parties, and this can be legally binding.

The difference between a court-resolved dispute and a mediated settlement can be summarised as follows:
A court finds in favour of one party against the other, who can be described as the LOSER. In a mediated settlement, it is entirely possible for there to be two WINNERS who, because of the skill of the mediator, may be able to continue in the business relationship often on even better terms than those that existed before the dispute arose.

Mediation Services are available through:

The Yellow Pages. See Mediators

The Law Society of Western Australia
Level 4, 89 St Georges Tce,
Perth WA 6000
PO Box Z5345
Perth WA 6831
Email: info@lawsocietywa.asn.au
Tel: (08) 9322 7877
Fax: (08) 9322 7899

Australian Society of CPA’s (members)
Tel: (08) 9481 5944

The Institute of Chartered Accountants
Tel: (08) 9322 7999

Citizens’ Advice Bureau of WA Inc.
Tel: (08) 9221 5711

Institute of Arbitrators and Mediators Australia
Tel: (08) 9316 9971

If you have a dispute that you believe could be resolved by mediation or you need advice, then please call our Advisory Service. Tel: (08) 9220 0222.