Is it win or lose? Or is it how you played the game?
Updated: Apr 15, 2020
If you are considering legal action to bring closure to a dispute or claim, having your matter heard in court is all about winners and losers, right and wrong in the eyes of the law.
But perhaps going to court is not what you really need.
You see, the role of a judge is to hear both side’s case and to apply the law in determining who is right, and who is wrong.
The law is black and white; one side wins, one side loses. But how did you play the game?
Disputes that result in someone taking legal action against another person or business run much deeper than the cold facts of a case.
Disputes or conflicts by their very nature are underpinned by strong emotion, feelings, morals and beliefs. We all have our own opinion on what’s the right thing to do, on what minimum community expectations might be, or perhaps it’s just the vibe.
As an alternative to legal proceedings, or as a parallel strategy to litigation, is mediation.
Mediation has many benefits for people or businesses in dispute. These include:
· Confidentiality – unlike a public court,
· Outcomes and agreements are self-determined – unlike a judge’s decision,
· Cost and time effective – mediations can be commenced quickly
· Your legal rights are not affected (in the event mediation is unsuccessful), and
· Signed agreements can be legally binding.
Behind many disputes, though, is the need for closure and for people to be able to move on. Moving on is difficult in circumstances where a person’s feelings, beliefs, and principles are not attended to.
This is without doubt one the key differences and major benefits of dealing with your dispute or claim through mediation.
In mediation, both sides put forward their own case, their own version of events or situation and how they have been impacted. Whilst parties choose to have the support of lawyers, counsellors, accountants or family member, mediations are for the lay person. An opportunity for participants to bring a pre-prepared uninterrupted speech that outlines what has brought them to mediation.
Just as importantly, it is also an opportunity for both sides to actively listen to the other side and better understand their point of view and underlying issues, beliefs and motivations.
Mediations are confidential and conducted on a without prejudice manner. This helps people have open and frank conversations to deal with all aspects of the matter, without fear of anything that is said being used against them at a later point in time (ie court hearings), or shared afterwards in the public domain. Courts in Australia are very supportive of mediation and the role it plays in dispute resolution.
So, if you are subject to legal proceedings, if you are considering legal action or if you are in a dispute with another party, ask yourself what you want out of resolving the dispute.
Take time to give consideration to your emotional needs, and consider using mediation to better achieve a holistic resolution.
A court will definitely decide on a winner and a loser – the law is black and white. But will 'winning' allow you to move on? Will relationships remain intact, will reputations and brands be ruined?
Maxwell Parker Dispute Resolution always recommends you seek your own independent legal advice when considering your options. However, ask them to consider the benefits of mediation as part of your broader approach.
Matthew Maxwell of Maxwell Parker Dispute Resolution is a nationally accredited mediator (NMAS),a Professional Member of the Resolution Institute, and a registered FDRP.
Matthew is based in Kiama, NSW and offers dispute resolution and consulting services Australia-wide.