Less than 2% of the disputes referred to the Supreme Court of Western Australia make it to trial. The remaining 98% are either settled or discontinued.
The difficulty with this statistic is that settlement usually occurs after the parties have incurred, sometimes unnecessarily, significant legal costs.
There is little or no advantage in leaving mediation until right before the case goes to trial. In reality, by this time the parties will likely have each incurred significant legal costs that they will be less willing to walk away from the dispute in a settlement scenario.
By mediating early, the parties are given the option to achieve an early resolution to the dispute with minimal time and cost expended on both sides. An early mediation allows the parties to come to more flexible arrangements that would not be possible if the dispute was tried by a judge.
Mediation is a process and not just an event. It is one of the most important stages of a legal proceeding, because it provides an opportunity for the parties to come face to face, to talk and to listen and explore options for resolution (with the aid of their lawyers) which may not have occurred prior to a mediation and which may not be possible by litigating the dispute to trial.
Tips for early mediation:
- Ask your lawyer whether your dispute is appropriate for early mediation and if not, when it would be appropriate to mediate and why.
- Ensure that you are properly apprised of the risks and costs of not settling prior to attending a mediation. Mediations are most successful when parties attend well-prepared.
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