What do you need to know before commencing civil proceedings?

1. What do I do before going to court? What are the alternatives to litigation?

Litigation is stressful and costly. You should always attempt negotiation and other dispute resolutions before going to court. Common alternative dispute resolutions include mediation (both formal and informal) and arbitration (usually for commercial matters). Some government authorities also provide mediation facilities free of charge to the parties. For example, the Victorian Small Business Commissioner conducts mediation for disputes arising out of a retail lease. The Dispute Settlement Centre of Victoria provides a free dispute resolution service for disputes between neighbours.

You should consult one of our litigation lawyers as we may be able to facilitate a settlement with the other party without the need to go to court.

2. What is mediation?

Mediation can be conducted formally or informally. A formal mediation is a structured negotiation process which involves an independent person, also known as a mediator, who will assist the parties to identify issues in dispute and to explore settlement options available. Discussions at mediation are confidential and without prejudice, that is, one party cannot “quote” what the other party has said at mediation in court. If the parties reach settlement at mediation, they must record their settlement in writing, usually in the form of terms of settlement. Terms of settlement should be drafted or reviewed by lawyers to avoid any ambiguity in the way that settlement is to be carried out and to avoid any ongoing liability between the parties.

3. How long do I have to commence proceedings? Is there a time limit?

A claim may be statute barred and become too old to pursue if you do not bring a claim within the time limit specified by statute. For example, in Victoria, a claim for debt may be statute barred after 6 years after the debt is due.

4. How long does a court proceeding usually take?

The length of a court proceeding varies depending on the complexity of the matter, the cooperation of the other party, the progress of any settlement negotiation and the availability of court dates. Cases in a superior court, e.g. Supreme Court usually take longer than those in an inferior court, e.g. Magistrates Court. In the Magistrates Court, the court will usually list the matter for a compulsory pre-hearing conference (similar to mediation) within 1-3 months after the defendant files its defence. If the matter is not settled at pre-hearing conference, trial is usually 4-9 months away.