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Velocity Legal

Level 43, 80 Collins Street, North Tower, Melbourne VIC 3000

Level 10, 580 George Street, Sydney NSW 2000

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Business Dispute Mediation

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Mediation can be an excellent way of resolving a business dispute. We help you to strategically undertake mediation, with the intent of securing a swift and sensible outcome.

Business disputes regularly arise. These disputes have the potential to create significant financial consequences if they are not resolved promptly.

There are several ways to resolve a business dispute and mediation can used as a form of alternative dispute resolution which is generally less expensive and less formal than going to court. Business partner mediation essentially involves an expert mediator facilitating discussions between the parties involved in the dispute. The aim of mediation is to resolve the dispute in a fair and sensible manner agreeable to both parties.

Approaching mediation in a strategic and pragmatic manner can significantly increase your prospects of achieving a fair outcome. We can guide you through the process and help you to move forward with confidence, irrespective of who you are in a dispute with - whether a business partner, customer, supplier, service provider or otherwise.

We assist with business dispute mediation, including:

  • representing you at mediation;
  • providing you with legal advice regarding the dispute;
  • strategic planning in preparation for mediation;
  • formulating without prejudice offers to resolve the dispute both before, after and during the mediation;
  • providing you with details about your options if mediation fails to resolve the matter; and
  • preparing a Settlement Deed to document a mutually agreed resolution.

We also assist with business partner disputes more generally.

Approach

Our usual approach is to:

  • provide you with a clear and transparent quote;
  • have an initial discussion about the dispute, your desired outcome and other key factors which may impact our approach;
  • provide advice regarding the legal boundaries for the business dispute (including exploring what we can potentially use as leverage, and what may be used against you);
  • collaborate with you to develop a strategy plan; and
  • methodically execute the plan and adapt where necessary.

Our advice will not focus narrowly on money. We consider the broader context – including factoring in the amount of time invested, energy consumed, and distraction caused by the dispute. That being said, if obtaining a certain amount of money is important to you, we will relentlessly pursue that for you.

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FAQ

What is business dispute mediation?

Mediation is a form of alternative dispute resolution. It involves an expert mediator facilitating discussions between the parties who are involved in the business dispute. It usually costs less and is less formal than Court.

Who usually attends a business dispute mediation?

The attendees of a business dispute mediation typically include:

  • an independent expert mediator;
  • the parties to the business dispute; and
  • lawyers who represent each of the parties to the business dispute.

What does a mediator do?

A mediator typically facilitates discussions between the parties and helps to guide them towards a mutually agreeable outcome. A mediator generally does not make a binding decision themselves, as it is up to the parties to ultimately agree on the resolution.

What is the aim of mediation?

The aim of mediation is usually to resolve the dispute in a fair and sensible manner which is mutually agreeable to the parties.

Who can I appoint as a mediator?

Who to appoint as a mediator usually depends heavily on the nature of the dispute. For that reason, we suggest getting preliminary legal advice about your options before appointing a mediator.
As a few examples:

  • if the dispute is between business owners, there may be a pathway for Court ordered mediation under the oppression provisions of the Corporations Act 2001 (Cth);
  • if your dispute involves a retail lease, you may be eligible to use the mediation service provided by the Victorian Small Business Commission;
  • if your dispute involves a claim by an employee, there may be options to use the Fair Work Commission’s conciliation service; and
  • if your dispute relates to commercial law, your mediator ought to be an expert in the relevant aspect of commercial law. This will allow them to authoritatively talk to the parties about the issues and the potential consequences if the matter ultimately went to Court.

As you will see from the above, there is no ‘one size fits all’ approach and it is important to think carefully about the best way of appointing a mediator for your business dispute. We are happy to advise you regarding your rights and options.

What if the business dispute isn’t resolved at mediation?

The best next step after mediation will depend heavily on:

  • the strength of your legal position;
  • the nature of the business dispute;
  • your unique pressure points, including any urgency to resolve the dispute;
  • whether the mediation came close to resolving the business dispute or not; and
  • other factors relevant to the dispute.

If the business dispute is not resolved at mediation, we can assist you to strategically plan the next steps.

What preparation do I need to do before business dispute mediation?

The optimal way of preparing will depend on the nature of the business dispute. However, as a general guide, it is worthwhile doing the following before the mediation:

  • getting legal advice so that you understand your legal position and the strength of your arguments from a legal perspective;
  • understanding what kind of remedy you would likely receive if the matter went to Court and you were successful, versus what would happen if you were unsuccessful;
  • workshopping what outcomes you would be willing to accept; and
  • preparing a strategic plan about how you will approach the mediation.

We are happy to assist you to prepare for a business dispute mediation.

When can mediation be used for a business dispute? Can I force someone to attend a mediation?

Some business disputes have mediation as a mandatory stage in the dispute resolution process. For example, mediation is often a mandatory step in disputes between owners of a business before the matter can proceed to a formal Court hearing.

Other business disputes do not have a mandatory mediation as a part of the dispute resolution process. For these disputes, mediation can nevertheless be requested even though it is not mandatory.

Please contact us if you need assistance working out whether you can compel someone else to attend a mediation.

Can I force my business partner to exit? Can my business partner force me out?

The ability to force out a co-owner depends on the relevant legal landscape that governs the relationship.

The documents that regulate the relationship between the co-owners (e.g. the Shareholders Agreement and Company Constitution) are key aspects of the legal landscape. The terms of these documents can be vastly different from situation to situation. Some of these documents provide a clear forced exit process, others do not. Looking at these documents is usually a sensible first port of call to understand what is and what isn’t possible.

If the documents governing the relationship between the co-owners do not contain a forced exit process, a forced exit can potentially be achieved with the assistance of the Court (e.g. via a winding up or oppression proceedings).

Alternatively, you can seek to negotiate a mutually agreed exit on appropriate terms. Some of the exit methods include:

  • an agreed sale of shares for a fair price;
  • a company buy-back of shares; and
  • a sale of the entire business to a third party.

We recommend obtaining tailored advice so that you can understand your legal position and strategic options.

I am having a disagreement with my business partner. What do I do?

We usually recommend seeking advice as soon as a dispute arises. This is primarily because disputes can rapidly become more serious if they are not resolved promptly, and strategic errors made in the early stages are often difficult to reverse.

Can I use mediation for a family business dispute?

Family business disputes often require a high degree of sensitivity given the family dynamic. Mediation can be particularly helpful for these disputes, as it traditionally provides a more private and casual setting for the parties to have settlement discussions.

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Business Dispute Mediation
Jess Hill

Jess Hill

Director

Greg Thomas

Greg Thomas

Director

Lauren Gross

Lauren Gross

Senior Associate

Sascha Kenny

Sascha Kenny

Senior Associate

Natalie Rossi

Natalie Rossi

Senior Associate

Daniel Urbans

Daniel Urbans

Associate

Tal Septon

Tal Septon

Lawyer

Amy Debelak

Amy Debelak

Paralegal

Luke Shannan

Luke Shannan

Law Clerk

Ben Kievit

Ben Kievit

Law Clerk

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