Mediation is an effective option for resolving disputes

To resolve a dispute, the parties involved may reach an impasse and turn to the legal system for help. Accordingly, many people believe the only lawyers​ option to resolving a dispute is to initiate a lawsuit. However, there are other avenues, which lawyers have a professional obligation to offer clients, that may lead to an acceptable outcome.

Mediation is one such option which is suitable for various cases including:

Mediation has proven to be a successful process for resolving disputes. For this reason, the court system has the power to order parties into mediation prior to going to court, if they have not done so voluntarily.

A less formal process than court proceedings, mediation is conducted by a neutral third person, known as a mediator. The mediator is usually someone trained and accredited by the Court and ideally possesses good conflict resolution and negotiation skills. Depending on the nature of the dispute a mediator may also be an expert in a particular field. Unlike a judge, a mediator won’t decide on the outcome of the case. Instead, mediation is designed to empower the disputants through a process of discussion, negotiation, and mutual agreement - with the aim of avoiding the cost, time, stress, and risks associated with formal litigation.

Mediation is a multi-stage process with most proceeding as follows:

The mediator begins by providing a universal statement about the nature of the dispute. They will also explain the goals and rules of the mediation, and to get the most out of it, encourage all parties to conduct themselves in a civil, professional, and constructive manner.

Each side then takes it in turn to present their opening statement – delineating their version of the problem. The mediation itself is flexible and can be tailored to the circumstances. Mediators may assist proceedings by asking questions, encouraging open discussion, offering different perspectives, and expressing issues in alternative ways.

If not already done so, the mediator will require a concise detailing of the facts, evidence and any other relevant information that may help them formulate ideas and proposals that meet each party’s core interests. The mediator can lead the negotiation with all parties in the same room, or they can split them up and engage in “shuttle diplomacy,” moving back and forth between the parties. It is important for both parties to enter negotiations with a clear understanding of their settlement proposal – and be prepared to reach a mutually beneficial compromise, if necessary.

The length of time mediation takes to reach an agreement (in full or in part) depends on the complexity of the issue and the willingness of the disputants to work together for the common good. Straightforward cases can potentially resolve in half a day. More complicated cases will require at least a day – but possibly more.

The details of an agreement will usually be recorded and signed by all parties before the end of the mediation.

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.

Covid-19 lockdowns give rise to commercial leasing disputes

Legislation introduced by the South Australian government in the early stages of the COVID-19 pandemic in 2020, (namely,  the Covid-19 Emergency Response Act 2020 and COVID-19 Emergency Response (Commercial Leases No 2) Regulations 2020), provided special protections to tenants, preventing landlords from imposing rent increases and/or evicting tenants experiencing financial hardship caused by ongoing restrictions and lockdowns.

This in turn caused confusion from landlords and tenants alike, leading to a spike in commercial lease disputes and both tenants and landlords seeking legal advice from commercial and property lawyers throughout South Australia.

With a new emphasis on negotiating on good faith, and businesses being able to continue to trade after the end of the COVID-19 pandemic, many issues were resolved  without litigation being instigated via negotiations between the parties and mediation, however, more contentious disputes were still being referred to and dealt with in the Magistrates Court.

With the ever-present risk of further Covid-19 outbreaks, businesses across the state face continued uncertainty and financial pressures brought about by ongoing disruptions to trade, especially amongst the state’s hospitality and retail sectors. These ongoing economic challenges highlight the importance of regular and frank communication between businesses and landlords and ensuring rights between the parties are properly documented (i.e. via lease agreements).

A lawyer with leasing experience can assist with a range of matters including, to:-

A Scammell & Co lawyer can also represent either party in any legal proceedings which may be brought before a court because of an unresolved dispute over a lease.

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.