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

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, when parties are ready for a pre-action meeting, they are (or should be) in an excellent position to negotiate a settlement.

A facilitator can help the parties get the most out of a pre-action meeting.

Lawyers involved in more than a few mediations get a sense of when a mediation should settle and when settlement is only a remote chance. Sometimes the parties’ expectations are not far apart, and other times there is a gulf that seems too far to cross.

But sometimes disputes that should settle don’t, and some that no one expects to settle do.

Whether your client realises it or not, they want three things from a ‘successful’ mediation, and those three things play a big part in success or failure of the mediation.

Many participants in mediation have never been involved in one before and have little idea of what to expect. Even many lawyers think of mediation simply as a conference where parties meet to negotiate the resolution of a dispute. That is certainly an element, but it is important to understand that the structure and process of the mediation also plays a vital part in setting the disputing parties up for success.

This is the first article in a series about participating in mediation. This article is suitable for parties facing a dispute, and for lawyers looking to prepare their clients for mediation.

I have recently established a new legal practice, intending to focus on commercial law and resolving disputes, without litigation if possible. I will now accept appointment as a mediator or facilitator to help parties resolve their disputes with fewer regrets. In this post, I explain why.