Making the most of pre-action meetings with a facilitator

Before heading to court in South Australia, parties are required to meet and try to solve their issues (Uniform Civil Rules, rule 61.12).

‘(1) If—

(a) the dispute is not resolved within 7 days after the time for service of the last pre-action document under Division 3; and

(b) arrangements for a pre-action meeting have not already been agreed,

the parties must negotiate in good faith to agree on arrangement for a meeting, either in person or by audio visual link or telephone conference call (which may be a mediation or other alternative dispute resolution process) to attempt to resolve the dispute (pre-action meeting).’

I recently attended a Law Society of South Australia panel discussion about the value of the pre-action process, including these compulsory meetings. The discussion was illuminating.

Statistics show that for almost all of the thousands of new civil actions commenced in South Australian courts annually, the parties claim to have followed the pre-action processes. We do not have statistics on the proportion of disputes resolved before litigation by the pre-action processes. Anecdotally, and notwithstanding that the purpose of the pre-action meeting is ‘to attempt to resolve the dispute’, the percentage of cases actually resolved must be tiny.

Subrule (1) anticipates that a pre-action meeting may take place in the context of an actual mediation or other ADR process. That is rare.

Subrule (5)(d) says:

‘if the parties or their lawyers anticipate difficulty in achieving the aims of the meeting, the parties should consider appointing at their joint cost an independent person to chair the meeting;’

That is also rare.

Jon Clarke, a well-known South Australian mediator and dispute resolution practitioner, mentioned in the panel discussion that he had seen significant success at resolving or narrowing disputes when parties had appointed a facilitator at the compulsory pre-action meeting. That is not surprising.

Pre-action meetings (in my experience and the broad experience of other lawyers I have spoken to) are too often treated as just the last of a series of mandatory steps before filing a claim. Perhaps the expectation is that genuine negotiations won’t occur until after that claim is filed.

In reality, a key purpose of the South Australian pre-action processes is to ensure that parties gather information and consider the real issues in dispute before spending their valuable time and money on litigation. Once that has been done, the parties are (or should be) in an excellent position to negotiate immediately.

A facilitator can help the parties in a pre-action meeting manage the formalities of the process while also allowing them the breathing room to consider their legal and commercial interests. The skills needed to do so are also the skills of a good commercial mediator. Mediation skills break down big problems into smaller ones, help keep everyone calm, and encourage creative solutions that go beyond just following the law.

But even if settlement at a pre-action meeting is not achievable, parties are well served by considering whether to engage in some other form of ADR before going to court. Mediation is one option, and there is no reason the facilitator cannot be the mediator (if the parties agree). Another one of many options might be to get a non-binding expert opinion to clarify technical issues.

In short, having a facilitator is a highly effective option for pre-action meetings. I encourage all South Australian lawyers to make the appointment of a facilitator a regular feature of these pre-action meetings.