There are many reasons to mediate and to mediate before you litigate. There are times when you have to go to court first but then don’t forget to mediate before you get to a trial stage. The Family Court and the Federal Circuit Court each have their own rules about dispute resolution.
In a recent Federal Circuit Court case (Watton & Smart) the Judge was critical of the parties and their respective lawyers failure to give enough attention to resolution of the dispute through dispute resolution methods. The Judge referred to the parties and their lawyers failing to consider or attend mediation or family dispute resolution or other fact to face settlement negotiations even though the parties attended a court based “conciliation conference” conducted by a Registrar of the Court. The judgment concerned an application for costs (which failed in part because of the way the parties conducted the litigation) but the more interesting part of the case revolved around the Judge’s comments about there not being enough attention being paid to face to fact dispute resolution methods by the parties and their legal representatives.
The Family Law Rules which apply to the Family Court do contain rules about pre-action procedures and attempts at mediation but the Federal Circuit Rules do not. However, the Judge referred to the Federal Circuit Court Rules and the objects set out in those rules which do require parties to “avoid undue delay, expense and technicality and consider options for primary dispute resolution as early as possible”. The emphasis is added.
The parties in this case spent a total of $300,000 on legal fees between them which represented about 10% of the property pool. Had they approached dispute resolution in a more timely manner they probably could have saved many thousands (perhaps $50,000 each) by not going to trial.