Defamation claims are often settled without the need to commence Court proceedings. The following are ways in which defamation claims can be resolved without the need for Court proceedings:
- Offer to Make Amends;
- Private settlement conference;
- Mediation; and
Offer to Make Amends
The process of the Defendant publisher making an Offer to Make Amends to the aggrieved Plaintiff, is set out in the national, uniform defamation laws. An Offer to Make Amends is usually provided in response to a Concerns Notice. A Concerns Notice is issued by an aggrieved pursuant to Section 14 of the Defamation Act. It sets out the complaint of the aggrieved as well as the imputations that are claimed to arise from the published defamatory material. It can include an offer to settle which may involve an apology, the giving of an undertaking not to further defame the aggrieved and payment of compensation.
Section 14(1) of the Defamation Act 2005 provides that an Offer to Make Amends cannot be made if 28 days has passed since the Defendant received a Concerns Notice or if a defence has been served in an action.
Section 15 of the Defamation Act 2005 provides what must be included in an Offer to Make Amends.
If an offer is reasonable in all the circumstances, it provides a defence to the defamation claim if the matter goes to Court1. You do not have to issue an Offer to Make Amends. You should be advised by your lawyer as to what the Offer to Make Amends states.
Private Settlement Conference
Most defamation claims are settled without the need to go to Court. Defamation claims that have not been widely publicised and which are made privately are often settled by way of a private settlement conference. This simply involves the parties having a conference, usually at which their lawyers are present. This may take place over the telephone with each party in different offices or all parties and their lawyers may meet at a conference face to face.
An apology can mitigate damages but is not determinative of liability in a defamation claim. Sometimes with minor disputes, all the aggrieved is seeking is an apology. A skilled defamation lawyer can advise you on the quantum of damages that a Court is likely to award you and whether you should simply settle for an apology or seek monetary compensation as well.
Mediations are often used in more complex matters. Mediators are usually very experienced barristers. They often cost between $3-8,000 per day. Some mediations go for half a day, whilst more complex matters require a mediator to be booked for a whole day. Most of the time, mediators are booked for either a half-day mediation or a full-day mediation. Mediators are provided with a brief, the contents of which have been agreed upon by both party’s lawyers. Skilled mediators are a great asset to parties in dispute and can sometimes elicit surprising settlements that both parties can live with. In mediations, the mediator often advises each party what they should settle for based on his or her opinion of an assessment of the claim. The mediator’s opinion may differ from that of each party’s lawyer and does not replace the advice that your lawyer may provide.
At mediations, at the start all parties are in the one room and the mediator addresses all parties. Then each party’s lawyer is given an opportunity to address the group, state the party’s case, and their position in terms of what is sought for a satisfactory settlement. Sometimes the parties themselves address the group if they feel confident enough to. Sometimes a party may wish to do this if they, for example, want to express strong feelings or perhaps a Defendant wishes to make a personal apology or expression of regret. Following this initial period when all parties are in the same room, each party goes to a break-out room and the mediator shuffles between the parties to negotiate a settlement. Once settlement is achieved, usually the mediator drafts a settlement deed which all parties sign. If each party cannot face the other in the same room then that is not required.
Mediations can be expensive but are far less costly than a Court trial. They also provide an outcome in a shorter amount of time than going to Court requires. Usually the parties halve the cost of the mediator as between them, but pay their own lawyer.
Arbitration is not a frequently used method of alternative dispute resolution, but it can be far more cost-effective than commencing Court proceedings. An arbitrator is usually a very experienced barrister. Arbitration is a cross between a mediation and a Court trial of the matter. First, what needs to happen is that the parties need to agree on who is to be appointed as the arbitrator. Then each party briefs the arbitrator, or a brief is compiled including documents that have been agreed upon between the parties. The arbitrator then makes an assessment of the matter and determines what the settlement will be. Sometimes arbitrators are only asked to determine certain questions such as liability, but on most occasions, arbitrators are asked to give a decision on both liability and damages. Arbitrators are paid to arbitrate and as with mediations, the cost of the arbitrator is usually halved, as between the parties. Arbitration does not require the parties to meet and have a conference such as in a mediation. Depending on the amount of time that the arbitrator is likely to spend on the matter, the cost of an arbitrator can be in the range of $5-10,000. Given the cost involved, arbitrations are usually only used in more complex matters where the parties are desirous of a final outcome.