If you find yourself in a business-related dispute, it is likely that you will already have tried to resolve the issues with the other party directly before you speak to a lawyer for assistance. Direct negotiation is often very successful for the disputing parties resolving their grievances with one another and we would always encourage you to try this as your first step.
Where direct negotiation with the other party fails however, we explore a range of different ways to help our clients reach a successful outcome both inside and outside of litigation.
Mediation as part of Litigation
We recently obtained a highly favourable settlement for an entrepreneurial client in a commercial dispute. Our client had an idea for a successful business in Queensland. Our client invited another party to join him in sharing in the management and the profits of that business. Unfortunately, the relationship broke down. The other party took control of the business to the exclusion of our client and set up a competing business. We assisted our client in commencing court proceedings claiming, amongst other things, breach of contract, misleading and deceptive conduct, breach of confidentiality and misuse of intellectual property.
The parties attempted to resolve the dispute via their legal representatives in correspondence initially, however, ultimately proceeded to court ordered mediation with a private mediator as part of the proceedings where the parties were able to settle at any early stage on successful terms for our client.
Court ordered mediation
Court ordered mediation is a confidential and, most often, effective discussion between the parties in a dispute. An independent mediator (often a barrister or solicitor) helps the parties talk about the real issues. The mediator works to identify a range of potential solutions to help the parties reach an agreement that will end the dispute.
Mediation outside of (prior to) Litigation
In many matters we also help our clients to reach a successful outcome in disputes without having to proceed to litigation (the commencement of court proceedings) at all.
In one such matter, our clients were the directors and shareholders of a medical practice. A former director was looking to sell her interests in the medical practice (and its associated entities). The parties had exchanged (with the assistance of legal representation) correspondence detailing their respective positions however, had not yet been able to reach an agreed position on the sale and the value of her interests. The previous agreements between them about these issues were unclear and inconsistent.
As such, mediation was proposed. This gave the parties an early and real opportunity to settle the dispute without having to proceed to court. The parties agreed to hold the mediation and appointed an independent mediator to assist. The mediation resulted in a favourable agreement for our clients and resolved all issues in dispute between the parties.
The Supreme Court of Victoria summarises the benefits of mediation succinctly as:
- Parties have a say in how their dispute might be settled. That is, they are part of crafting the solution rather than having one forced on them by a court.
- Disputes can be resolved faster and with lower legal costs than by going to trial.
- What is said during a mediation is confidential – discussions are not recorded or kept. This allows for open and meaningful discussions to resolve the real issues.
- When parties reach agreement, they leave the mediation knowing the outcome of their dispute that day rather than waiting for court determination.
- If the parties agree, the settlement agreement can be confidential and include additional and more tailored terms that a court wouldn’t otherwise order.
At Burke Lawyers our Dispute Resolution and Litigation Lawyers do the worrying for you so you don’t have to. They listen to understand your position and circumstance so they can make the most suitable legal recommendation to achieve the best possible outcome to enable you to get on with your life.
If you need assist and legal guidance with a Business Dispute we are here to help. Contact us today on +61 3 9822 8588 or email our team HERE.
