Almost every commercial dispute resolves by agreement rather than judgment. Mediation is simply the decision to arrive at that agreement early, before the costs, the management time and the relationship have already gone.
Legal fees are the visible number and usually not the largest one. The real cost is your people. Directors preparing affidavits, managers pulling records, a leadership team carrying a dispute in the back of its mind for two years. None of that appears on an invoice and all of it comes out of the business.
| Litigation | Mediation | |
|---|---|---|
| Who decides | A judge, on the evidence admitted | You and the other party |
| Timeframe | Often measured in years | Usually weeks to first session |
| On the record | Public. Findings, and your name in them | Confidential |
| Cost | Open-ended, and driven by the other side's conduct | Known before you start |
| The relationship | Almost always ends it | Can survive it |
| Outcomes available | What the law can order | Anything both parties will agree to |
A court can order money. It cannot order a revised supply schedule, an apology, a staged exit, a referral, or a new arrangement that leaves both businesses better off than the dispute found them. Mediation can produce any of those, because you are not limited to the remedies a court has available.
Many commercial agreements contain a dispute resolution clause requiring the parties to attempt mediation before commencing proceedings. If yours does, this is not optional, and starting in court can be costly. It is worth reading that clause now rather than after your lawyers have drafted a statement of claim.
Commercial and workplace disputes across Australia, in person or online.
Scope, performance, delay, defects and payment. Disputes where both sides would rather not spend a year and a meaningful share of the contract value establishing who was right.
Deadlock, exits, valuations, breakdowns between owners. Mediation keeps this out of the public record and away from your customers, staff and financiers.
Conflict between staff, between teams, or between an employee and management. Addressed before it becomes a formal claim, a resignation, or a matter before a tribunal.
Territory, performance, renewal and termination disputes, where the parties are locked together by an agreement that still has years to run.
Variations, delay, defects, retention and progress claims, between owners, builders and subcontractors.
Long-standing suppliers, co-owners, family businesses. Litigation ends relationships. Mediation is the only process that can end the dispute and keep the relationship.
Where you need a precedent, an urgent injunction, or a determination on a point of law, mediation is the wrong tool and we will tell you so at the scoping call rather than after you have paid for a session.
Four steps, no surprises, and a fee agreed before anything starts.
Fifteen to thirty minutes. What the dispute is about, who needs to be in the room, whether mediation is the right tool at all, and what it will cost. Confidential, and nothing said in it is shared with the other side.
A short written summary from each side before the session, exchanged or held confidentially, whichever suits. Not pleadings, and not an exercise in advocacy. Often the first time each party sees the other's actual reasoning.
Usually a single day, in person or online. Joint session, private sessions, or shuttle throughout if the parties would rather not sit together. Lawyers are welcome and are not required.
If you settle, you leave with the terms recorded and signed. Your own lawyers then formalise it. If you do not settle, the process is confidential and nothing said in it can be used against you later.
Quoted before you commit, either as a fixed fee for the matter or a day rate, and usually shared between the parties. There is no hourly meter running while you think. The scoping call is free.
Costs are most commonly split equally, which keeps the mediator visibly independent of both sides. Other arrangements are possible where the parties agree, and we will raise it at the scoping call rather than leave it to become its own dispute.
Michael Tyler. Nationally accredited mediator and registered family dispute resolution practitioner. Both registrations are public and you are welcome to check them before you engage.
A mediator does not decide anything, does not give either party advice, and does not take a position on who is right. The role is to run a process in which two parties who have stopped being able to talk to each other productively can do so again, and to test both sides' thinking hard enough that the settlement reached is one that holds.
We do not provide legal services or legal representation. If you need advice on your position, that is what your own lawyers are for, and having them in the room is often a good idea.
Alternative Dispute Resolutions sits alongside Mediation House, which handles family dispute resolution, elder mediation and property matters.
The scoping call is free and confidential, and we speak with each party separately before anything is arranged.