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Rule 41A and Mediation


Litigating parties are often frustrated by the costs and delays of ordinary court processes. Alternative dispute resolution options like arbitration go some way towards resolving this, but are still slow and expensive. Mediation remains the gold standard when it comes to fast, affordable and effective ways to negotiate settlements, and with Covid-19 having accelerated the adoption of remote business models, mediation has never been more accessible.

This voluntary process – where parties, assisted by a qualified independent mediator, attempt to facilitate resolution of a dispute through negotiation – is a relatively short process (it seldom lasts more than a day or two in total), and importantly does not bind the parties if they fail to reach an agreement. If mediation does not work, they are free to pursue the avenue of litigation unencumbered.

Online mediation offers several advantages, especially when it comes to accelerating the process. Once a mediator has been identified and agreed upon, setting up the actual mediation is a relatively simple exercise. In session, a deft mediator can skilfully manage the mediation, moving between group session and caucus at the click of a button.

Amendment to 41A of The High Court Rules came into effect on 9 March 2020, and it is now mandatory for parties to consider mediation prior to pursuing litigation. This requires every new action to be accompanied by a notice indicating whether the party agrees or opposes referral of the dispute to mediation, and if the latter, they must provide good reasons why
they believe the dispute cannot be mediated. (The notices are on a without prejudice basis, and so do not form part of the record of the trial or hearing).

This course of action, which remains voluntary (parties can’t be forced to attempt a mediation of their dispute if they provide valid reasons why they deem the matter unsuitable), nonetheless goes a long way towards encouraging parties to consider the considerable advantages of mediation, right at the beginning of attempting to resolve their dispute.

A mediation led by a skilled and qualified mediator often leads to a swift resolution, which not only avoids dragging the issue through the courts- but also spares people frustration, money- and most importantly, time spent in conflict.

Rule 41A is a legal reform that hopes to encourage mediation as an effective way to resolve a dispute early on in the process, and we have no doubt this this will benefit many parties.

Simon Attwell – 18 September 2020

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