January (No. 492)
Alternative dispute resolution is an effective option for wineries and growers
Scott Lumsden , Thomson Playford
It may come as a comfort to many wineries and growers to learn that disputes over business arrangements and supplier contracts do not have to end up in court.
While there will always be matters where a hard-line approach is necessary, Alternative Dispute Resolution (ADR) strategies such as mediation are worthwhile considering.
ADR techniques often mean that a resolution can be achieved quickly and more cost effectively.
It also means the relationship between the parties may be protected or even enhanced. The parties are not limited to the usual judicial remedies but can create their own, and confidentiality can be maintained.
ADR strategies range from negotiation, being the least structured, to arbitration, the most highly structured. Mediation, which normally comes after negotiation, is the most widely-utilised ADR tool and is widely regarded as being the most effective. The mediation process involves the use of an independent third person to assist the parties to reach their own resolution of the dispute.
A mediator is engaged by the parties to assist them in defining the issues in dispute and to develop options for resolution of the matter. The selection of the mediator will be determined by the issues in dispute.
In cases involving construction of legal documents, a senior lawyer or barrister is usually retained to mediate.
In cases involving technical issues such as fruit or wine quality, it may be more appropriate to retain a wine industry expert to mediate.
The mediation is not a hearing, there are no rules of evidence and there is no determination made by the mediator. The role of the mediator is to assist the parties to reach agreement. However, as mediation is a voluntary process, the parties need to be committed for it to succeed.
A preliminary conference is usually held before the mediation takes place. The mediation then begins with a ‘joint session’ at which the parties are invited to outline the issues which brought them to the mediation, identify common ground and isolate issues for resolution.
Following the joint sessions, the mediator will hold various private sessions with each party. This will allow the mediator to develop an understanding of the basis on which each party may be prepared to settle – without disclosing confidential information to the other party – and subsequently bridge the gap between them.
Mediation normally takes at least a full day, however, mediations involving a number of parties can continue for two or three days.
If the process is successful many months of pre-trial procedures and a trial lasting many days or even weeks can be avoided. Even if a matter does not settle through mediation it may assist in narrowing the issues that need to be determined by a court.
Not every mediation is a success. However, even if the process breaks down and legal proceedings are pursued, it is always possible for the mediation process to be resumed at a later time.
Scott Lumsden is a partner at commercial law firm Thomson Playford. He specialises in licensing, commercial disputes and environmental law. Scott can be contacted on (08) 8236 1340 or at firstname.lastname@example.org