Litigation & Dispute Resolution

Although mediation is facilitated by an independent third party, the process is ultimately driven by the parties and their advisors. The mediator’s role is not to determine the outcome, but to assist in managing the negotiation process, ensuring that discussions remain focused, productive and directed toward resolution.

In most mediations, particularly lawyer‑assisted mediations, the process involves a combination of:

• identifying the key issues in dispute;

• assessing the strengths and weaknesses of each party’s position;

• formulating and refining settlement proposals; and

• negotiating toward a resolution that is acceptable to both parties

Discussions are often conducted on a without prejudice basis, meaning that offers made during mediation cannot be relied upon in Court if the matter does not resolve. This allows parties to explore settlement options more openly than they might otherwise be prepared to do.

In many matters, mediation is conducted by way of shuttle negotiation, where the parties remain in separate rooms and the mediator moves between them. This is particularly common where there is a high level of conflict or sensitivity between the parties.

Shuttle mediation allows each party to:

• speak openly with their legal representative;

• receive detailed advice before making decisions; and

• consider proposals without direct confrontation

This structure often results in more considered and strategic negotiation, particularly in complex financial matters or high‑conflict parenting disputes.

Mediation should not be approached as an informal or secondary process — it is often the most critical stage in resolving a dispute.

A structured and strategic approach involves:

• identifying clear negotiation parameters;

• understanding the other party’s position and likely motivations;

• timing offers appropriately; and

• maintaining a focus on workable and sustainable outcomes

Approached properly, mediation provides the opportunity to resolve disputes efficiently, on terms that are both legally sound and practically effective.

Mediation is most effective where:

• both parties have a sufficient understanding of the issues;

• relevant information and evidence has been exchanged;

• there is a willingness to engage in genuine negotiation; and

• the process is properly structured and supported by legal advice

It is less effective where parties are not prepared, where there is a lack of disclosure, or where one party is unwilling to engage.