So the pleadings are settled and each party has had the opportunity to see each other’s relevant documents. What next?
Mediation
Mediation is a process which is usually ordered by the Court (in lower Courts or tribunals a “compulsory conference” or “pre-hearing conference” may be ordered). It gives the parties an opportunity to attempt to settle the dispute before it proceeds to trial. Even if the matter doesn’t settle at mediation, the process can be of value to the parties as it gives each other the opportunity to come face to face, to determine the real issues the parties need to resolve and it also gives each party a strong idea of the strengths and weaknesses of the other’s case.
Sometimes the Court will appoint a mediator, but usually the parties are left to agree to a suitable mediator (and pay him or her directly) and venue. Just because the other party suggests a particular mediator does not mean you should agree. Both parties should be satisfied that the mediator is someone with whom they are comfortable.
Mediations are confidential and what is said at the mediation cannot be used later in open court (or in another forum).
A mediation usually commences with a joint session where the mediator will give a short summation of what is to occur. The representatives for each party then give an outline of their case (typically 10 to 15 minutes each). The mediator may give the parties themselves an opportunity to say something, or their representatives a chance to reply to particular issues raised by the other.
Once the parties have heard each other’s arguments, the mediator will usually ask the parties to retire to separate rooms. Then the negotiations begin in an attempt to settle the dispute. The mediator will move between the separate rooms and communicate the terms of any offers by the parties to settle. The mediator may seek information from one of the parties to assist him or her (without disclosing that information to the other party) to help the parties reach agreement.
If no settlement can be reached, the mediator will report to the Court and the matter will be set on a course for trial.
Trial
Sometimes the mediation may throw up some unresolved issues which require further steps before the matter can be ready for trial. If all steps have been completed, the matter will be ready for hearing.
The “trial” is the hearing which is conducted before a judge or magistrate to determine the facts and issues in dispute. Each party calls witnesses who give evidence (and/or documentary evidence is led through those witnesses). There are two parts to a witness giving evidence. The first is called evidence-in-chief where the witness gives his or her version of events on questioning by the party’s barrister (or “Counsel”). In some courts, evidence-in-chief is given orally by the witness, while in some court’s evidence-in-chief is given in a witness statement which the witness confirms when they enter the witness box. The second part of the evidence is called cross-examination which is where the witness is questioned by the opposing party’s Counsel. There are rules which relate to how a witness gives evidence and is questioned by Counsel (something which I don’t intend to address here but may be the subject of a future blog post).
At the conclusion of evidence, each party’s Counsel makes their submissions about the facts and the law upon which they rely.
The judge or magistrate then makes his or her decision and gives judgment. Often, a judge will reserve his or her decision which means that they take time (anywhere from a few days to a few months) to come to a decision which is usually put in written form.
Judgment
When the judge makes his or her decision, he or she finalises the proceeding by giving judgment, that is, making orders about the outcome of the case.
If the plaintiff is successful on his or her claim, the judge will likely order that the defendant pay to the plaintiff “damages” (usually a sum of money to compensate the plaintiff for the loss the plaintiff has suffered). If the defendant is successful, the plaintiff’s claim will be dismissed.
The usual rule is that the losing party is ordered to pay the winning party’s costs of the proceeding. The amount of those costs is based upon a “scale” which the Court uses (a schedule of costs for particular items of work) and may need to be determined by the Costs Court if the parties cannot agree on the amount of costs to be paid.
A judgment in favour of the plaintiff does not necessarily mean that the defendant will pay. The plaintiff may need to enforce his or her judgment if the defendant doesn’t pay. Enforcement will the subject of another blog post.
I hope this two part overview has enlightened you about how the litigation process works.