Family law barrister and professional mediator Heather Breeze has spent decades helping families, companies, and individuals settle their disputes. She’s appeared in courts in England and Australia, and has brought parties together behind closed doors to help them come to agreements by avoiding lengthy and costly court proceedings. Here are three circumstances when Breeze, a barrister at 8 Garfield Barwick Chambers in Sydney, says mediation is better than litigation.
“Mediation,” she states, “has to be the gold standard.”
- Before you even file a lawsuit, mediation can work.
Court proceedings are costly — both financially and emotionally — says Heather Breeze. Contracting a lawyer, airing grievances in a public forum, the adversarial nature of litigation, and being subjected to the rulings of the presiding judge all take their toll. Sometimes litigation is unavoidable — especially if parties are not initially able to come to an agreement. But many of the disagreements between families, businesses, and individuals never needed to travel as far as they do, says Heather Breeze. It is simply that often people feel the courts are their only avenue. That is not the case.
For Breeze, litigation should be seen as the path of last resort in most disagreements. She advises clients to always try to talk things out before they even file a lawsuit.
Breeze, who is also a partner in Mediate3, says she’s done hundreds of mediations for all kinds of disputes. She’s also guided hundreds of clients through court proceedings. And she says she knows which one of the two usually comes out with a better result for all involved. It’s mediation.
Breeze adds, “The wonderful thing about mediation, as a mediator, is the opportunity to have a one-on-one consultation with the parties prior to commencing the mediation. It is often the case that the parties’ cases are more aligned than they realise. Mediation is a phenomenal pre-litigation settlement tool.”.”
- When an issue is sensitive, mediation offers resolution in a private and confidential setting.
No one likes airing their dirty laundry in public. But that’s exactly what happens when a dispute ends up in court. Few types of civil litigation between private parties take place behind closed doors. And even if they do, the parties are still hauled through the halls of the court house for all and sundry to see.
Long ago corporations realised that mediation offered a more private forum to try to resolve disputes between businesses.
Mediation is a form of alternative dispute resolution in which parties come together in a structured, interactive way to solve their problems. The process is led by an independent third party called a mediator, who works in a neutral way to help the parties resolve their conflicts. Unlike in a courtroom — which is adversarial and anything you say can be used as evidence for the opposing counsel to help make their case against you — participants in mediation are encouraged to be frank and participate actively in the process.
“[In mediation] everything is confidential. That’s the most important thing,” says Heather Breeze. “Nothing that’s said in mediation can be used in any court … with certain discrete limitations. So, people can be completely frank.”
The corporate world has been using mediation for decades, since it’s a way of solving disputes without sensitive commercial information becoming public. Mediation also helps businesses maintain relationships with each other, whereas litigation is often the cause of rifts that cannot be healed.
And other areas of conflict that deal with sensitive matters are also now starting to use mediation as an alternative to the courts. Family law, conflict between neighbours, and even criminal matters are now making use of mediation.
- In the middle of a court case, mediation can bring parties together.
Even when parties are in the thick of it and can’t seem to make headway in court, mediation can be a powerful tool, says Heather Breeze. A trial or hearing can often come to a grinding halt when lawyers are pressing hard to win their clients’ case with no compromise. It’s then that mediation can be used to bring down the temperature and cut to the heart of a dispute. Outside the courtroom the rules of engagement change. All of a sudden it’s not about getting everything you want at the cost of the other person. Mediation provides an avenue for compromise.
Imagine parents in a custody dispute. In court, each parent is pushing for sole custody but they know that the other parent needs a place in their child’s life. Courtroom tactics often require a zero-sum game mentality, whereas in mediation the focus of opposing parties can come back to what’s truly important — like the needs of a child to see both parents.
However, Heather Breeze advises that mediation in the middle of a court case requires a strong mediator who has the best interests of everyone involved at heart.
“Without a strong mediator even the best intentioned lawyers must by rights continue to advocate their clients cases outside court – so whilst the Court may encourage settlement and allow time for the parties to conference an independent mediator is an invaluable and objective resource. The lawyers know that without settlement they need to go back into the fray and that is an unavoidable impediment.
The key is to have professional mediators who work to keep the parties away from the court to settle their disagreements, says Heather Breeze.
Before you file a lawsuit, if the dispute is of a sensitive nature, or even in the middle of a trial, Breeze recommends considering mediation as an alternative to litigation.