Commercial
Litigation

Always remember that parties are compelled to disclose to each other damaging documents as well as helpful ones.  The duty of disclosure is strict and the courts take it very seriously.  The duty is to disclose ‘documents’. ‘Document’ has a very wide meaning and includes all media including paper documents, tapes, computer records and email.  It includes electronic documents stored on server and back-up systems and electronic documents that have been deleted.  Parties are required to disclose documents over which they have ‘control’. These include documents that a party has had a legal right to possess, inspect or copy including documents held by third party professional agents. Parties are required to conduct a reasonable search. For electronic documents it may be reasonable to proceed by means of agreed keyword searches.  In a major case, disclosure can be the most costly part of the litigation.  Compliance with the rules is vital and it is necessary to ensure that documents are secured and stored appropriately from the outset and that none are inadvertently destroyed or deleted or altered.  It is vital to asses and protect documents from the moment that litigation is contemplated. It is also important that existing documents are not annotated, altered or added to.  We can assist and guide you through the process and professional advice should be sought when proceedings are first contemplated.

In commercial litigation, the costs can be substantial and the process time consuming for all, with a number of deadlines and the prospect of the court imposing a judgment upon the parties.  Mediation is a voluntary and flexible form of alternative dispute resolution.  The mediator is a neutral third party appointed by the parties to work towards a negotiated settlement.  The benefits include:

a) Communication problems between the parties can be overcome.
b) Business relationships may be preserved.
c) The process is entirely confidential and covered by privilege.
d) The parties can choose a mediator, but not a judge.
e) Legal costs may be saved.
f) Mediation can produce outcomes which are not available to the court.
g) The parties have active participation in the process and control of the outcome.
h) Mediation can usually be set up expediently and quickly.
i) The process is low risk, no party can lose at a mediation.
j) Mediation has a high success rate – between 65%-85%.

The potential disadvantages are:

a) If no resolution is reached, the time and costs are aborted.
b) Mediation can sometimes result in disclosure of strategies to the other party.
c) The mediator cannot order disclosure of documents – so the timing of the offer may be important in current proceedings.

We have experience of mediation and the appointment of mediators and can guide you through the process.