Brisbane Courts Support Alternative Dispute Resolution Options

Mediation is proving to be a very successful alternative process to resolving disputes. If the courts are endorsing the use of workplace mediation then it makes sense for workplaces to follow suit.

The Queensland Magistrates, Supreme and District Courts use Alternative Dispute Resolution in civil cases to help parties (organisations and individuals) to reach settlement out of court. In an Alternative Dispute Resolution process such as workplace mediation, an independent third party helps to resolve disputes so that expense, time and the tribulations of a trial may be avoided.

The Brisbane based Queensland Law Society strongly supports the use of mediation stating,

A successful mediation will always be more cost-effective than going to court.

Many of the outcomes reached at mediation cannot occur in a court. For example, a court can only interpret what a contract means and cannot help you renegotiate the contract if both parties decide that is necessary. In mediation you can provide for commercial considerations and end up with a better solution for all concerned.’

Does mediation preclude a matter from going to court?

Participating in mediation does not preclude a matter from going to court. If agreement is not reached in mediation or an agreement is reached but not upheld by one or more parties, a party to the mediation may then elect to bring the matter before a court.

However under statute, mediation can only proceed on the basis of “without prejudice” discussions being privileged from disclosure – including in court cases. (Note: there are some exceptions such as all parties to the mediation agreeing to such disclosure).

In Morais & Anor v Mills (No 2) [2010] QDC 282 (heard at the Birsbane District Court), the defendant filed an affidavit in which issues were allegedly said in mediation between the parties. At [5] Judge Dorney QC noted the principles of an Alternative Dispute Resolution process embrace and support the common law statutory prohibition on making mediation discussion public. Importantly, mediation discussions must be held under ‘privilege’.

Dorney QC stated:

[8] Hence, even if there are certain circumstances in which “without prejudice” discussions might be able to be availed of with respect to issues of costs, they could not here override the statutory prohibition against reference to such discussions in the present circumstances. [9] Accordingly, I will ignore all matters contained in the affidavit ….insofar as those matters purport to be with respect to anything said, or done, at the relevant mediation.

The use of mediation at an early stage

The Queensland Law Society recognises that it is quicker and easier to go to mediation than to court. This means you can use mediation at an early stage in the dispute”.

Workplaces should also consider using mediation at an early stage in a workplace dispute and using a nationally qualified and experienced mediator to ensure an early and successful outcome, rather than have the matter un-addressed allowing escalation over time, a deterioration in relationships and work performance and repercussions affecting other team members.

Workplace Conflict Resolution has mediators available in Sydney, Melbourne, Brisbane, Adelaide, Hobart, Perth and Geelong. Contact us today for a confidential discussion about workplace disputes impacting  on your staff and how we can help to promptly and effectively resolve such situations, allowing you to concentrate on other matters at hand.

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About the Author

Catherine Gillespie brings a wealth of skill to her clients. With particular expertise in teaching communication and workplace conflict resolution skills, Catherine has made a marked difference to the organisations she has worked with. She empowers teams and managers to adopt constructive styles that support harmony, productivity and progress in the workplace.