Heather Breeze — an Australia-based barrister and professional mediator — has learned a lot about the court systems, conflict resolution, and the general nature of disputes over the course of her career. Here’s what Heather Breeze has learned about legal disputes from her experience in mediation.
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If you can, avoid the court system entirely
If an argument between companies, individuals or family members has made its way to court, most people would assume that there’s little chance of reconciliation between the parties. But Heather Breeze thinks nothing could be further from the truth. Time and again she has seen disputes end up in court when there could have been a better way.
“As effective as it is, court is just not the best way to resolve differences,” says Breeze, who has a thriving family law practice based out of 8 Garfield Barwick Chambers in Sydney. “Fighting can be counterproductive. There’s always a better alternative. That might not be a new idea. It’s something that everybody’s always understood. But it’s worth remembering, especially when there are better alternatives.”
As a barrister in Australia, Breeze is well known for helping clients with complex parenting, and financial matters related to divorce. But before moving her practice to Australia, Heather Breeze was a litigator in London, England, working on medical malpractice and professional negligence cases.
In all these areas of conflict she has seen disputes go from salvageable to unsalvageable, from bad to worse, all because the parties felt they had no other choice but to take each other to court.
“A courtroom is a tough place for a litigant to be,” says Heather Breeze.
In court, time is not on your side, says Heather Breeze
At least in Australia, says Heather Breeze, the courts have full dockets of cases they need to get through. This means time pressures for opposing parties.
“The number of children in the courts in Australia is lamentable,” she says, taking an example from her family law practice. “I don’t know how many times a day I see parents come at [a parenting] battle thinking, they’ve got rights. And I have to say — because for the litigant the system can be obscure — that from a legal perspective, parents do not have the rights. They have no entitlement to spend time with their child. They have every obligation to support the child, but because of its focus on the child’s best interests, a court does not approach any sort of arrangements in relation to a child’s residence and care arrangements with the idea that a parent has a right to their child. And nor should it.”
The point is that if parties are looking for resolutions that take their own rights into consideration, the courts cannot often provide them, because the courts are not looking at the dispute from the perspective of the concerned parties – the parents.
Heather Breeze also has extensive experience in alternative dispute resolution, helping companies in international arbitration and mediating conflicts between families and companies alike. She is a partner in Mediate3 — a team of mediators that helps parties work through all aspects of a dispute — family and property, commercial, rural, succession and estate disputes, elder law, and intergenerational disputes.
In mediation, where opposing parties are helped to resolve their conflict by an impartial third party, counterparts are encouraged to actively participate in the decision making.
The lesson Heather Breeze takes from this dual experience is that wherever possible, it’s always best to try and avoid the courts.
Legal disputes are not the place for privacy, says Heather Breeze
If you’re looking to keep your business private, the courts are not always the best place to settle disputes, Heather Breeze has learned from her time both as a courtroom advocate and a private mediator.
Most courts are a public forum where anyone can wander in off the street. There is nothing so humbling and to be frank, excruciating, than having your dirty laundry aired in public, or than being cross-examined by opposing counsel over the intimate details of your life. The courts are public for a very good reason. Justice needs to be seen to be done. But this can sometimes be little comfort for the parties involved.
Even closed courts provide only a certain level of privacy and confidentiality. Court filings and dockets provide more than enough evidence for someone to piece together a good story.
Mediation, on the other hand, is held behind closed doors with little or no paper trail.
“Everything is confidential. It’s a complete vault, That’s one of the fundamental tenets”,” says Heather Breeze. “Nothing that’s said in the mediation can be used in any court, with very few discrete exceptions. Case statements are (or should be) destroyed after a mediation. So, people can be completely frank.”
Most legal disputes are both unique and homogenous – at the same time, says Heather Breeze
Every litigant quite rightly feels that their case is special. After all, it’s happening to them and their circumstances are theirs alone. Yet, because it could see hundreds or thousands of cases a year, the courts are more likely to see the commonalities between cases of the same type – divorce, parenting, financial or contractual disputes between businesses. It is for this reason that the courts have set out formulaic ways to address the issues that they see, day in, day out.
For instance, when determining [parenting arrangements, Heather Breeze says the legislation sets out a pathway to allow the courts to apply an algorithmic approach to deciding who will assume the primary care of the children.
“You feel that your case is unique and you feel that your case is the most horrendous set of circumstances that’s ever been before anybody in a court of law. But there are a hundred other matters on the docket each week which are exactly the same,” says Heather Breeze. “The court will take a pragmatic approach and put you through an algorithm, and you’ll come out the other side.”
In truth, there’s a very good explanation for the courts treating similar cases in the same way: Justice, equality and overall fairness. But this can be an unsatisfying answer to someone who loses a parenting dispute.
In mediation, however, parties are able to find their own resolution, based on their unique circumstances and needs.
“The court system has its place,” says Heather Breeze “But I don’t know how anyone would voluntarily go through the court process if mediation is open to them first.” And the court system is the first in line for advocating mediation, and alternative dispute resolution. Heather remarks “The court is spearheading the prioritisation of mediation. It’s a mandatory process which parties must, in Australia, undertake before they are at liberty to file a court process. Moreover, the court mandates countless opportunities throughout the litigation process for existing litigants to exit the system through mediation. What needs to happen more, in my view, is for the parties to comprehend the value in the process – that the court’s exhortations to compromise should not be seen as Plan B. Mediation is definitely Plan A.
