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Barrister pushes for compulsory mediation
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Barrister pushes for compulsory mediation

Compulsory mediation should take place before parties are given the green light to litigate their civil disputes, a barrister has said.

Mediator and barrister Max Kimber SC (pictured) has called for attention to return to the debate on compulsory pre-litigation mediation.

“In my view it is time to revisit the contentious question of whether pre-litigation mediation should be compulsory in most civil matters – that is, not just in family law matters,” Mr Kimber said.

According to the barrister, all parties would be better off if they were made to participate in mediation before being permitted to progress civil matters to litigation. As in family law, he believes civil disputes should focus first on resolution out of court rather than litigious “battles to the death”.

“The commencement of legal proceedings will invariably signal the end of a business, work or personal relationship, if that relationship has not already ended – so it is a big call.”

“Business owners, employers and family members would be better spending their time, effort and money on ways in which to prevent or bring about the early resolution of the conflict that is inevitable in business, workplace and personal relationships,” Mr Kimber said.

With more than 35 years’ experience practising in litigation and conflict resolution, the barrister said he had met few clients who were inclined to embrace mediation from the get-go.

As a rule, litigation should be the last resort in a dispute, he said. The reality for parties who dive into litigation, however, can be protracted in-court proceedings and blown-out costs.

“People are still largely unaware of, or do not appreciate, the real value of other forms of dispute resolution – and not just mediation.

“Of course, they may also not feel capable or comfortable dealing with conflict personally and face to face,” Mr Kimber said.

“Our communication shortcomings result in healthy disagreements, too often becoming unhealthy conflicts and then being assigned – outsourced – to lawyers, to take up our fights for us,” he said.

In an effort to bring the full range of dispute resolution options to the attention of practitioners, Mr Kimber will lead a two-day conference on communication and negotiation skills. The Communicate 2016 conference will be held in Sydney later this month.

Mr Kimber said the program was designed to counteract a “lack of training undertaken at schools and universities” for people to listen to and acknowledge the points of view of others.

Max Kimber SC

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