Mediation and settlement of claims

Mediation is a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute.

Before you can begin legal proceedings in a court, your solicitor must advise you to consider mediation as possible means of resolving the underlying dispute involving an independent mediator. The solicitor will also set out the advantages of mediation and discuss its suitability for the dispute at hand. Solicitors are also obliged to provide details of possible mediators. Whether or not you decide to enter into mediation with the other side is your own choice.

Parties may also agree to enter mediation at any stage after legal proceedings have begun.

A court may also suggest that the matter may be better resolved through mediation. If such a recommendation is made by a court, any failure to explore mediation may be reflected in the costs order made by the court at the conclusion of the proceedings.

Once a claim has been made, a settlement between all the parties can be reached either prior to the trial date or on the day of the trial ("on the steps of the courtroom").

If the defendant wishes to offer you money to end your claim and you are agreeable to settling your case out of court, your solicitor may arrange a settlement meeting with the defendant's legal representatives prior to the trial date.

At the meeting, your legal representatives will explain to you the advantages and disadvantages of accepting the offer made by the defendant and will give you advice about your chances of success at trial and the amount of damages you may receive in court.

The advantage to settling your case is that it removes the risk of losing the case and/or having to pay the costs of the case. There is no guarantee that a court will award you more damages than the sum offered by the defendant.

Your solicitor or your barrister will negotiate with the defendant's legal representatives to reach a sum that is acceptable to all sides. Usually the issue of who is to pay your legal costs is dealt with. You are not obliged to accept the advice of your solicitor or barrister or to settle your claim and the final decision will always be yours.

However, if you do agree to a settlement then that decision is final, the case proceeds no further and you have forfeited your claim in return for the mutually agreed sum. It is often the case that the terms of any settlement can be made the subject of a court order or lodged in court to make it easier to enforce the settlement agreement.

If the claim is made in the name of a child or a person who lacks mental capacity, any settlement must be approved by the court.

If an offer is made in settlement of your claim and you refuse that offer, the defendant may lodge that amount in court.

If at the end of the case the judge awards an amount that is less than the lodgement, you will generally be obliged to pay all of the legal costs of both sides since the date of the lodgement.