Commercial disputes

Settling a commercial dispute outside the legal process

All mediators introduced by this site offer a process separate from the courts¹ which would hear your commercial dispute. The Courts do have power² to refer a dispute to mediation, but this is only once the action is already underway.

The mediation process offers a convenient and sensible way to try to settle the dispute without recourse to the courts.

In Federal claims parties and their lawyers are strong encouraged to take "genuine steps" to resolve a dispute before suing.³ Lawyers have duties in this regard.⁴

Mediation has a high success rate, and mediators offer a relaxed process with sufficient time to deal with all issues however complex.

In the event that the dispute is not settled, the time and expense of the mediation will not be wasted. This is because the court will be much less likely to refer the case to mediation if it has already been attempted.

1	*Magistrates Court, District Court or Supreme Court (Queensland jurisdiction) and Federal Circuit Court or Federal Court (Federal jurisdiction).*
2	*Section 43 Civil Proceedings Act 2011 (Queensland jurisdiction); section 53A Federal Court of Australia Act 1976, s34 Federal Circuit Court of Australia Act 1999 (Federal jurisdiction).*
3	Civil Dispute Resolution Act 2011. Note also that by sections 6 and 7 of the Act a "genuine steps statement" must be filed in court by both sides.
4	Section 9 of the Civil Dispute Resolution Act 2011 requires lawyers to advise their clients about the obligations under the Act and to assist them to comply; and under s24 of the Federal Circuit Court of Australia Act 1999 lawyers have a duty before suing in the Federal Circuit Court to consider whether to advise the client about the alternative dispute resolution processes which are available.

Commercial disputes

Mediation ordered by the court

Once proceedings are underway the court will be quite likely to refer it to an Alternative Dispute Resolution (ADR) process or mediation¹. The parties and their lawyers generally have a duty to co-operate in this process².

You don't have to wait for the court to order mediation, you can try it at any stage in the proceedings which seems appropriate.

Whilst the court will appoint a mediator, the parties can decide on their own mediator if they wish³.

Mediation has a high success rate, and our mediators offer a relaxed process with sufficient time to deal with all issues however complex.

Settlement by mediation is a far better way to resolve the dispute than proceeding with the claim in court. It removes all the uncertainty and will be a lot quicker and cheaper.

1	*Section 43 Civil Proceedings Act 2011 (Queensland jurisdiction); section 53A Federal Court of Australia Act 1976, s34 Federal Circuit Court of Australia Act 1999 (Federal jurisdiction).*
2	Rules 322 and 325 of the Uniform Civil Procedure Rules 1999 and sections 43 and 44 of the Civil Proceedings Act 2011 (Queensland jurisdiction). In the Federal Court the parties must consider options for alternative dispute resolution, including mediation, as early as is reasonably practicable (Rule 28.01 of the Federal Court Rules). And under section 24 of the Federal Circuit Court of Australia Act 1999 lawyers have a duty to consider whether to advise the client about the alternative dispute resolution processes which are available.
3	This is provided for in Rule 323 of the Uniform Civil Procedure Rules 1999 (Queensland jurisdiction); see also Forms 33 and 34 under the Rules. In the Federal Court it is provided for in Rule 28.05 of the Federal Court Rules, and in the Federal Circuit Court, in Rule 27.04 of the Federal Circuit Court Rules 2001.

Commercial disputes

Heading for trial in a commercial dispute? Settle your case by mediation now.

If your commercial dispute is in the court system and it is heading for trial, then despite earlier efforts to settle you can still go to mediation to try to settle it now.

It may well be that it will be easier to settle now than it was before. As parties approach the trial there is more incentive to settle - the final costs of proceeding to trial are still avoidable, and the risks are better understood. By now the merits in the case or in its defence is usually clearer. And the quality of evidence on the various issues will be easier to assess. The lawyers will have made their final assessments of the merits of the case and of the risks of proceeding.

Mediation has a high success rate, and our mediators offer a relaxed process with sufficient time to deal with all issues however complex.

Settlement by mediation is a far better way to resolve the dispute than battling the claim in court. It removes all the uncertainty, and usually provides a happier finality to the process than a court hearing.