Mediation is still poorly known and its effects are often questioned by economic actors. They often see in mediation only a heating round of the real procedure, which can only intervene according to them on the judicial plane. Moreover, even if the process is confidential, the parties are often afraid to engage fully in mediation because they fear that their positions, revealed in this framework, even if they cannot be taken back as such from a judicial standpoint, may nevertheless indicate their main arguments and reveal their strengths, allowing the opposing party to prepare, or even better counter. For the commercial litigation brisbane you can have the commercial litigation brisbane now.
The Best Advantages
The great advantage of mediation, however, in our view, lies in the fact that this process does not fall within the formalistic framework of the judicial process. In mediation, the parties must be innovative and free to advance non-legal, often more reasonable, solutions in their litigation. They must be prepared to consider their differences no longer from the legal point of view, but from other angles, in particular that of the economic and commercial aspect of their past or future relations. It is therefore not essential that the mediator be a lawyer. It would even be a disadvantage to us, so important is the opportunity that mediation offers to the parties to talk to each other informally. On the other hand, it is essential for the mediator to be familiar with the methods of mediation, in order to bring the parties back to dialogue and to show all the flexibility and imagination necessary to settle their dispute.
Ordinary civil procedure:
Under law, ordinary civil procedure is defined by the Federal Code of Civil Procedure. This code has unified the various cantonal civil procedures that prevailed until then. The purpose of this contribution is not to describe the details of this procedure. Rather, it allows the businessman to consider what to expect if he decides to take this route to settle his dispute. As such, it should first be emphasized that this procedure cannot be envisaged without the assistance and advice of a lawyer registered at the bar of the dispute. The procedure, although it has been in many ways somewhat simplified by this new code, remains complex and peculiar. Only a lawyer at the bar will guide his client in this labyrinth often complicated.
- Secondly, the parties’ attention should be drawn to the length of the proceedings. A trial period of 18 to 24 months is the rule. 36 months is common. An appeal of an average duration of 12 months can follow, as well as a recourse to the Federal Court which is settled in 6 to 12 months, which leads, according to experience, and whatever the choice of choice, to procedures close up see over four years, all instances combined.
The Best Costs
The costs of the procedure are not negligible either. Expense advances defined according to the cantons can be important. Finally, and this may be the main pitfall, the courts seized will be tribunals composed of general judges, often unfamiliar with the mysteries of business practice. Agreements submitted to judges must therefore be carefully explained or made understandable in order to overcome the prejudices that often prevail against certain commercial practices.
