Let's Talk Law: Alternative dispute resolution — the better-tasting pill

Court out ... maybe there's a better way to resolve issues.

MORE often than not, when I hear people talk about "wanting their day in court", I quietly sigh.

Civil litigators enjoy the court process and the challenge that court work can bring. But to do our job, we need another equally important skill set too.

It involves the ability to negotiate successful results for clients away from the court building in an environment where, unlike court, parties are free to make concessions, more free to speak their minds and to achieve results over and above financial ones (although most often economic results are the ones spoken about).

Don't get me wrong, there is an ever-present need for an effective judicial system, and sometimes there is no alternative but to battle out a claim out in front of a judge.

However, for most claims, in order to give proper service to a client, the lawyer should be more than alive to looking at other ways to skin the cat to resolve contentious issues, without the need for parties to "have their day in court".

As to the why, while having enormous respect for the judicial system and the judiciary (many of whom make up our country's finest legal minds), courts can be unpredictable places.

It is a very brave lawyer indeed who would guarantee a client a certain outcome, in most cases. On the whole, we lawyers work in the area of grey, so we understand what risk looks like.

Additionally, there is the whole matter of cost. Too often, I hear it said that if the case goes to court it is only the lawyers who win. I have to admit that sometimes this is true.
And there are occasions where a win can, in fact, be a loss — if say the fees of bringing a claim are disproportionate to the sum the parties were scrapping about, or if the "losing" party has insufficient financial means to meet a judgment.

And then there is the time. It takes a long time — more often than not many years — for most civil claims to be heard, at least in part due to court resourcing issues and, perhaps sadly, the need for so much judge time to be allocated to the criminal and family courts. For obvious reasons, giving those courts priority is a must.

More and more over recent years, lawyers (and their clients) are seeing the sense of attempting to resolve disputes through mediation. The court system endorses these efforts, and now commonly parties will be referred to mediation or to a judicial settlement conference, in essence, a mediation with a judge wearing a mediator hat.

Mediations bring the individuals involved in a claim to the table, literally.

Generally, the parties and their lawyers attend and an independent mediator (commonly another lawyer, or a judge — as above) facilitates discussion, assists to irons issues out and ultimately attempts to work with the parties to reach a settlement.

Mediations are confidential and held on a without prejudice basis, meaning that what gets discussed on the day may not later be used against a party if settlement is not reached.

Unlike the courts, where there may be limitations on the remedies available, mediation often enables parties to explore more practical and dynamic solutions and, at times, can certainly pay far more consideration to intangible matters, such as allowing for matters of empathy or anger to be expressed so it can have a cathartic effect.

Mediation should never viewed as a soft alternative to a trial, but embraced at the right time in the course of a dispute as a way of bringing about a successful outcome — one where hands may be forced far more gently than they would potentially otherwise be in the court arena, at less cost and without painful delay.

Whether the dispute is commercial or personal, the negative impact of protracted conflict should not be underestimated at an economic or psychological level.

Experience tells me that the pill swallowed at mediation is most often less bitter for all than the alternative.

Lisa Douglas is a partner at Treadwell Gordon