1. The majority of disputes are resolved by consensus.

For example, less than 3% of lodgements in the District and Supreme Courts of Western Australia are finalised by trial. The Hon. Chief Justice Wayne Martin AC has said:

“… I do not see any particular advantage in reserving mediation until the case is about to be tried. To the contrary, experience suggests that much is to be gained by referring cases to mediation early …”

We endorse the view that disputes should be referred to mediation as soon as possible, wherever possible.

2. It provides transparency on what our clients will be charged for the service we provide.

The concept of clients being charged an open-ended amount at continuous 6 minute intervals is losing favour with the market. Fixed cost legal services are gaining widespread popularity. However, very few firms (with the exception of Pragma) offer fixed fees in dispute resolution and litigation.

3. It reduces the amount our clients spend on legal fees.

With over 95% of legal fees during litigation being time billing, the longer a dispute lasts, the more costly it will be. The strategy of an early mediation:

(a) increases the prospects of the dispute resolving at an early stage;

(b) reduces the likelihood of a lengthy legal proceeding; and thereby

(c) reduces the risk of spending more money for legal advice and representation.

The strategy of an early mediation is almost always appropriate where the sum in dispute is small. In those sorts of cases, legal fees can become disproportionate to the sum in dispute. There are rarely any “winners” when this occurs.

4. It allows our clients to spend their time on more important things.

A dispute can drain a client’s resources by diverting their attention away from things that are more important such as their core business and their family time. Implementing an early mediation strategy reduces the prospect of this occurring.

5. A mediation is more flexible.

Parties can reach solutions that would not be possible at trial.  Because parties can reach their own solutions, they are likely to be more satisfied with the outcome.

Litigation is inherently risky.

One of the major risks in the early mediation strategy we wish to make clear is that if a party is capable of commencing or defending a legal proceeding and bringing it to an early mediation and the dispute does not resolve, the legal proceeding does not come to an end. It will be programmed towards a trial. This results in additional legal expense that is not included in the costs set out on the graph above. However, we advise our clients on what those legal fees are likely to be before they engage us. The parties will have additional opportunities to reach a consensus and we will normally encourage them to do so.

Other risks include other interlocutory applications being brought by a client’s opponent in the litigation prior to the early mediation, the costs of responding to these are not included in the prices quoted on this page.

Claimants

You get:

1. An experienced lawyer meeting with you, taking your instructions and reviewing relevant documents that support your claim;
2. A letter of demand (or Notice of Default or Notice of Termination if appropriate) issued to the debtor;
3. If this fails to result in an outcome satisfactory to you, the commencement of a legal proceeding in the appropriate Court;
4. Where necessary, the preparation of a Statement of Claim;
5. Assuming the proceeding is defended, an early mediation attended by you and your lawyer;
6. If the dispute resolves, a Deed of Settlement and Consent Order dismissing the Action prepared by our firm;  and
7. If the dispute does not resolve, a costs protective written offer prepared by our firm.

All Court fees are included.

Defendants

You get:

1. An experienced lawyer meeting with you, taking your instructions and reviewing relevant documents that support your defence;
2. A letter in response to any creditor setting out any defence available and making any offer of settlement;
3. Where necessary, the preparation of a Defence;
4. If the letter fails to resolve in the resolution of the claim and a legal proceeding is commenced, the preparation of a Defence where necessary;
5. An early mediation attended by you and your lawyer;
6. If the dispute resolves, a Deed of Settlement and Consent Order dismissing the Action prepared by our firm; and
7. If the dispute does not resolve, a costs protective written offer prepared by our firm.

There are likely to be less or no Court fees payable.

1. The Legal Costs Committee is an independent statutory committee comprising both legal practitioners and non-practitioners which publish Costs Scales (Scales). The Scales set out the sum a party may recover from another party on taxation, or on a solicitor-client basis unless there is a Costs Agreement which specifies otherwise. The estimations set out in this graph are based on the Scales and our experience in these sorts of matters to set out the range of likely costs our clients may be able to recover from an adverse party on taxation if they are ultimately successful in their claim or defence. You can read more and also view the Scales here.
2. Emphasis added. See the link to His Honour’s full speech to the Australian Centre for Justice Innovation by visiting the above link. (above, n 1).
3. For the fixed fees quoted on this page, we will review up to 3 lever arch files of documents in support of a claim. Where it is not possible for us to adequately discharge our duties without reviewing further documents, we will seek to negotiate a revised fixed price with our clients.
4. This is a document filed with the Court and served on the other party or parties which sets out the factual and legal bases of the client’s claim. This is not included or required for claims of $75,000 or less.
5. A Pre-Trial Conference in the Magistrates Court of Western Australia (read more here) or Early Mediation in the District or Supreme Courts of Western Australia (read more here).
6. In the District or Supreme Courts of Western Australia, parties will only be compelled to attend an early Mediation if the Court orders them to do so. If the parties do not agree, we will bring an application seeking an early mediation. It will be in the Court’s discretion for those orders to be granted. If they are not and assuming it is appropriate, we will use our best endeavours to meet informally with the other party or parties and their lawyer(s) as an alternative to mediation.
7. This is only included where the sum in dispute exceeds $75,000.
8. For the fixed fees quoted on this page, we will review up to 3 lever arch files of documents in defence of a claim. Where it is not possible for us to adequately discharge our duties without reviewing further documents, we will seek to negotiate a revised fixed price with our clients.
9. This is a document filed with the Court and served on the other party or parties which sets out the factual and legal basis of the defence. This is not required or included in the price for claims of $75,000 or less.
10. This is only included where the sum in dispute exceeds $75,000.