Litigation or mediation?

September 24, 2019
FCB Workplace Law

When a dispute arises, it’s far too common for parties to “lawyer up” before they’ve looked at the dispute from multiple angles and figured out the right way to resolve it.

It’s no secret that litigation is time consuming, emotionally wearing and costly. The costs associated with going to court will likely be disproportionate to the nature, size, significance, and value of the claim to be resolved.

The first step to resolving your dispute is to pair your problem with the right dispute resolution technique, whether that’s still litigation, or an alternative such as counselling, facilitation, conciliation, or mediation.


Mediation is a form of alternative dispute resolution (“ADR”) that aims to see parties compromise and resolve their differences without going to court. Those involved in a mediation will typically engage a third party, who is adequately qualified, to help them resolve the issue. Mediation is especially successful if used in the early stages of a dispute, and if the parties attending mediation have every intention of reaching a settlement.

Mediation has some advantages over litigation:

  • Parties are directly involved in negotiating their own agreement;
  • Proceedings are conducted in a (fairly) private manner;
  • Parties are in control of their own position;
  • Mediation is less expensive and time consuming than court; and
  • Parties have a say in the level of involvement they wish a mediator to have.

With a couple of disadvantages:

  • Mediation needs the cooperation of both parties to be successful; and
  • There’s no guarantee that a settlement will be reached.

The potential advantages of mediation show that a court isn’t always the right forum for solving a dispute. Max Kimber SC believes that when disputes are escalated and people attempt to resolve them by traditional conflict resolution, it’s often the case that “disputes will be classified to fit within a legal theory, deflecting the inquiry from the underlying conflict”. Mediation, as an alternative, can save parties an enormous amount of the time, emotional turmoil, and expense associated with prolonged conflict and litigation.

Mediation has proven especially beneficial when disputes are emotionally charged and/or employment related. This is because parties are afforded the opportunity to communicate their understanding of the issues in a more appropriate and proportionate way, and because there’s an inherent interest by both parties in reaching a resolution and preserving any relationship.

That’s not to say that court should be avoided altogether, but it’s wise to pursue all reasonable alternatives to avoid such costly proceedings. A mediation process is an alternative that’s less formal and gives parties some level of control and influence over the outcome.

Failing to mediate an outcome to which parties are relatively agreeable will leave the decision at the mercy of a court which, in most circumstances, will result in an unpredictable and less mutually-beneficial outcome.

For more information about this article, please contact Matthew Robinson on 02 9922 5188 or