After speaking with many people in various social media groups that discuss legal issues, it became apparent that many people are disillusioned with their mediation experiences, somewhat baffled by this, I was determined to find out what is the cause of such ill-feeling towards mediation.
After numerous discussions, what became abundantly clear, was in many cases the Mediator was not qualified as a Mediator, yes they may be legal professionals, lawyers, barristers, court registrars etc who are very familiar with the law and can grasp the legal implications of a case, but the problem here is…. they are not mediators, when mediating they are not there to give legal advice or opinion. That is the job of the lawyers representing the parties.
So with no formal mediation qualifications or training, the ad-hoc mediator enters the fray, puts on his mediator hat and now hopes for the best that they can help the parties negotiate a deal with some sort of guidance from the wannabe mediator.
On top of that to add insult to injury the parties are forced to pay exorbitant rates for this so called mediation, with costs ranging from $7,500 to over $13,000 for the day of Mediation being commonly quoted.
In contrast, highly experienced, qualified mediators who are trained to NMAS standards and registered with the Mediator Standards Board according to rates paid by Government agencies for mediators who have to maintain an 80% success rate in their performance and resolution of cases only get $1,350 per day.
So before you chose your next mediator or accept one to mediate your case click here Mediator Standards Board and see if their name is listed to show they are qualified and trained to National Standards.
If you would like a free, no obligation consultation with a nationally qualified mediator simply complete the form below and we will call you to discuss whether mediation could help you.
 Victorian Small Business Commissioner, Mediation Panel Policy for Appointment of Mediators, accessed here on 06/13/18 at 10.56am, https://www.vsbc.vic.gov.au/wp-content/uploads/2017/09/VSBC-Mediation-Panel-Policy-for-Appointment-of-Mediators.pdf.
 Victorian Small Business Commissioner, Mediation Panel Fee Policy, accessed here on 6/13/2018 at 10.54am https://www.vsbc.vic.gov.au/wp-content/uploads/2017/09/VSBC-Mediation-Panel-Fee-Policy.pdf.
Mediation provides persons dealing with banks, corporations, government agencies and their lawyers (‘the wolves‘) a vast range of options when it comes to avoiding Court, Litigation and/or Bankruptcy due to matters involving loan and/or debt defaults.
Mediation in particular has become a very valuable tool for resolving disputes of all kinds, including those in the insolvency sphere. While the prospect of attending a mediation might once have been considered by courts and litigants to be a sign of weakness or vulnerability, this is no longer the case.
Mediation has become a standard part of most litigation processes and it has been reported that approximately 60% of all disputes referred to mediation in the Australian superior court system settle.
Whilst the wolves chasing the default may want to go straight to Court, often hoping for a summary judgement to enforce, without going to trial, or alternatively with the power imbalance of superior legal and financial resources compared with a defaulting debtor,
who may not be able to afford a lawyer and in civil proceedings who would not qualify for legal aid, the wolves are tempted to pounce for a quick judgement and enforcement.
HOW TO FORCE MEDIATION WHETHER THEY LIKE IT OR NOT
1. The wolves must comply with fiduciary responsibilities.
Banks and Corporations chasing defaults have persons employed to perform this task who all become “officers” of the companies to which they are appointed. This means they become subject to the same duties that are imposed upon company directors under the Corporations Act 2001 (Cth).
Insolvency practitioners also have further duties to be fair and to act without bias in assessing the competing interests of stakeholders, and to act with integrity, objectivity and impartiality.
Obtaining an outcome during Mediation that is satisfactory to all stakeholders (including the creditors and/or shareholders) should involve the application of all these duties.
If that outcome can be achieved at an early stage of a dispute, without the delay and expense usually associated with full scale litigation, then the wolves can hardly be criticised (and in fact, may be applauded for taking a constructive, conciliatory approach).
2. Remind the Wolves that the courts can say so!
Section 6 of the Civil Dispute Resolution Act 2011 (Cth) requires any applicant in a Commonwealth court (such as the Federal Court or Federal Magistrates Court) to file a “Genuine Steps Statement” at the time of filing any application.
The Genuine Steps Statement must specify:
The steps that have been taken to try to resolve the issues in dispute between the applicant and the respondent in the proceedings; or the reasons why no such steps were taken, which may relate to, but are not limited to, the following:
- The urgency of the proceedings and the extent to which, the safety or security of any person or property would have been compromised by taking such steps; and
- The “genuine steps” involve notifying the other party of the issues in dispute and offering to discuss them and providing relevant information or documents to the other party;
While a failure to file a Genuine Steps Statement does not invalidate the proceedings, adverse costs orders can be made against the parties and even their lawyers.
It should also be borne in mind that both the Federal Court and the State Courts in most jurisdictions also have power to order parties to participate in a mediation anyway, even if there is no formal requirement for a Genuine Steps Statement to be filed (which is the case in the Supreme Courts of NSW, Victoria and Queensland).
3. Remind the Lawyers there is a Climate Change in the Legal Profession
With Mediation becoming embodied in State and Commonwealth legislation, Regulations and Court Rules, it means there is an accelerated shift from litigation to Mediation being imposed upon the legal profession, which must adjust to this dynamic legal climate.
Legislation such as the Federal Court of Australia Act and the Victorian Civil Procedure Act have ‘Overarching purpose’ and ‘pre-action’ provisions that require parties to facilitate the timely and efficient resolution of civil disputes. For example, s 7(1) states that the ‘overarching purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.
Use of an ADR process, which includes mediation, is explicitly referred to as one method of achieving the overarching purpose.
4. Liability of Lawyers to Advise on ADR Options
Lawyers who fail in their duty to advise clients have faced various sanctions. It is a duty that must be considered by Federal Court judges when awarding costs and both parties must file ‘genuine steps’ statements prior to litigating with participation in ADR considered as ‘genuine steps’ that can be taken to resolve a civil dispute.
5. Personal Costs Orders Against Lawyers
There is a statutory duty for lawyers to advise and assist clients with genuine steps statements, and failure may result in lawyers not only subjected personally to costs orders but the lawyer must not recover the costs from the client.
6. Misconduct Sanctions Foreseeable
It was argued by David Spencer, Senior Lecturer at Sydney University that at the nexus of Mediation and the legal profession the governing bodies dealing with growing regulations and rules of professional conduct faced position where Mediation was not part of substantive law yet part of the legal profession.
Whilst encouraging Mediation absent substantive law regulating it, there may be other heads of liability, such as negligence, where if a Lawyer fails to advise their client it could breach Rules of Professional Conduct. It is foreseeable that Australian legal practitioners may find themselves liable if they do not advise their clients of Mediation options.
In Adamson v Queensland Law Society Inc, the test for professional misconduct was: –
“…whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency”
This was dealing with matters of “Unprofessional conduct or practice” considering a standard of professional conduct expected of the profession.
It is foreseeable as Legislation, Regulations and Rules provide for Mediation processes and they become part of the standard of professional conduct expected of lawyers, one who fails to adequately advise their client on Mediation may well find themselves liable in a tort of negligence or disciplinary proceedings for malpractice.
As held in Adamson:-
“The lawyer should put the client’s interests first and treat the client fairly and in good faith, giving due regard to a client’s position of dependence upon the practitioner, and the clients dependence on the lawyer’s training and experience and the high degree of trust clients are entitled to place in lawyers …particularly with respect to compromise.”
This would suggest there is a duty of care to the client to advise of Mediation.
7. Costs Penalty in Success
There are risks of lawyers getting adverse cost orders imposed by the Courts for failing to negotiate even if they succeed at trial, as Mansfield J of the Federal Court of Australia, warned:
“To decline to negotiate in relation to an informal offer when it might have been reasonable to have done so might have adverse costs consequences to the successful party.”
8. Because parties like the ATO will go that way
Agencies of the Commonwealth Government in Australia have an obligation to act as a “model litigant” in conducting any litigation.
This direction includes:
“endeavoring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate.“
In particular, the Australian Taxation Office is expressly bound by these provisions which have been incorporated into its Practice Statement Law Administration PS LA 2009/9, so action involving the ATO will often lead towards mediation before a final hearing.
9. In litigation, there is only one winner
Despite the optimism that all litigants will feel at the start of litigation, at least half of them will go on to lose once they go to trial. This is a confronting reality that you should always bear in mind, no matter how strong you may think your arguments are.
The benefit of ADR, and particularly mediation, is that parties have an opportunity to assess their respective case’s, including its strengths and weaknesses, at an early stage and considerations that if the defaulting party already has no money, pursuing legal action and costs associated with it which may never be recovered ought to be considered as part of the Corporate fiduciary duties and duties of the legal advisors as discussed above.
A settlement at mediation is usually a case of each party discounting their expectations to account for the risk of the worst case outcome (ie, losing the case with adverse costs orders). It allows the dispute to be resolved on terms that each party is prepared to live with, whilst at the same time, hopefully, benefiting those parties as well.
10. It is confidential
Other than in limited circumstances, all information obtained, discussions, offers, counter-offers, negotiations and settlements arising in connection with a mediation are confidential.
This is certainly not the case with formal litigation. If the dispute is a commercially sensitive one, there should be good reasons to keep the information confidential.
This confidentiality requirement is enshrined in both the Federal and State legislation, and is also reflected in the confidentiality agreements that all participants are required to sign before the commencement of a mediation.
11. It is almost infinitely flexible.
You can achieve outcomes at a mediation that the court would simply not be empowered to make in formal litigation.
There are matters such as the future dealings between the parties, as well as apologies, can be incorporated into settlements. For instance a short term downturn that resulted in a temporary default with mediation can be resolved and salvage the relationship between the parties, it’s entirely up to the participants.
In litigation or arbitration, the court or final arbiter makes the decisions and parties often walk away unhappy.
In a mediation, the ultimate decisions that are reached (such as whether or not to settle, and on what terms) are made by the parties themselves. As a result, in most instances the parties perceive both the process and the result to be fair and provide for avenues where the relationship can continue into the future if desirable.
12. It minimises risk
A successful mediation should help to minimise risk for the parties, whether that risk be financial, business, reputational, cultural or risk of any other sort.
For example, an early settlement with certainty (or even security) is likely to be a more attractive result than a judgment for a higher sum against an entity that can’t eventually pay it because of the cost of the litigation.
Further, even in circumstances where you may not have a particularly strong case, you could still have enough to at least negotiate an outcome with the other party that enables you to avoid the risk and cost of formal litigation.
Whether the parties agree to go to mediation willingly, or are otherwise ordered to go (often against their will), it is important to recall that approximately 60% of all disputes referred to mediation in the Australian court system settle.
So, even if things look bleak going into the mediation, nationally available statistics suggest that the prospects of settling are still pretty good.
If you would like to find out if Mediation could help in your case, please contact us using the form below for a free, no obligation consultation with a Nationally accredited Mediator.
 National Alternative Dispute Resolution Advisory Council ADR Statistics 2003. As mediations often result in confidential settlements, current statistics are hard to come by. However, given the increase in popularity of mediations since 2003, the re is no reason to believe this success rate has declined.
 Corporations Act 2001 (Cth), CHAPTER 2D–Officers and employees – Part 2D.1—-DUTIES AND POWERS.
 ARITA Code of Professional Practice for Insolvency Practitioners (the Code), paragraph 2.5, ‘The Code’.
 The Code, paragraphs 5.1, 5.2 and 5.3.
 THE ROLE OF A LAWYER IN ADR, Danny Jovica, http://para-legal.org.au/the-role-of-a-lawyer-in-adr/.
 For example, see section 26 of The Civil Procedure Act 2005 (NSW).
 The Role of Lawyers in Mediation: Insights from Mediators at Victoria’s Civil and Administrative Tribunal, Kathy Douglas and Becky Batagol, Monash University Law Review 2014 (Vol 40, No 3).
 Federal Court of Australia Act 1976 (Cth) s.37M.
 Civil Procedure Act 2010 (Vic).
 Ibid s 7(1).
 Ibid s 7(2)(c).
 Federal Court of Australia Act 1976 (Cth) s 37N(4).
 Civil Dispute Resolution Act 2011 (Cth) ss 6–7.
 Ibid s 4.
 Civil Dispute Resolution Act 2011 (Cth) S 9.
 Ibid s 12. See, e.g., Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys
 FCA282 (23 March 2012), where no genuine steps had been undertaken, and the Federal Court
ordered the legal representatives of the parties be joined for the purposes of costs.
 Ibid s 12(3).
 Spencer, David L., Liability of Lawyers to Advise on Alternative Dispute Resolution Options (November 2, 1998). Australian Dispute Resolution Journal, Vol. 9, No. 292, 1998.
 Adamson v Queensland Law Society Inc  1 Qd R 498.
 Adamson v Queensland Law Society Inc  1 Qd R 498.
 Are you being too bullish in settlement negotiations and refusing to mediate? Be warned, Michael Hollingdale, Australian Dispute Resolution Bulletin September 2015.
 Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd (No 2)  FCA433 at .
 Legal Services Directions 2005, Appendix B, clause 2(d).
 Eg with the consent of all parties, or to enforce an agreement reached at mediation. For others, see section 31 Civil Procedure Act 2005 NSW.
 National Alternative Dispute Resolution Advisory Council ADR Statistics 2003.
Concepts and some content in this article have been drawn from 7 March 2018 Article by Mark Addison of DibbsBarker titled “10 reasons why insolvency practitioners should consider ADR” and from the Article titled “THE ROLE OF A LAWYER IN ADR” by Danny Jovica, available here http://para-legal.org.au/the-role-of-a-lawyer-in-adr/.
This post is an analysis of the Ku-ring-gai Council v Ichor Constructions Pty Ltd  NSWSC 610 case and the article by Marque Lawyers which starts off with :
Arbitrators can wear many hats. Sometimes they can even pop on a mediator’s hat. But what happens when they swap hats back and forth? Does the fedora mean they’ve started arbitrating again and that we are all okay with that or do they just have bad fashion sense? If only there was a way to be sure…
Just because an arbitrator “can” wear many a fedora, it does not mean the parties to a dispute should entertain such a comedy routine. To have a person who is arbitrating a dispute and has heard the respective arguments now say to you, instead of me deciding the matter, the Arbitrator comes up with `How about I pop on my mediator hat then we all break away and talk settlement‘. To suggest now the parties can figure it out themselves and “talk settlement” while the Arbitrator wannabe Mediator mediates seems farcical.
A recipe for disaster from the outset! It would appear this case was highly suitable for private mediation and could have been resolved by a professional mediator but instead the genius Arbitrator wannabe Mediator comes up with what he thought was the “Mediator of the Year Award-worthy suggestion that the parties just `walk away’, the mediation promptly ended and the arbitration resumed.”
What followed was an epic cock-up of not following required procedures of getting written consent of the parties to maintain the comedy routine of rotating fedora’s, each time the fedora changes it required the written consent of the parties. Ooops the wannabe Arb-Med Mediator forgot to get written consent when he changed his hat back to an Arbitrator after his epic fail as a Mediator and an Arbitrator.
The Court orders the Arbitrator’s decision invalid and now the parties are back to square one, still in an unresolved dispute which could be mediated, but will likely now go back to litigation, “incur further costs and probably be left wondering why immunity from suit was ever granted by legislation to arbitrators.”
The key takeaway (according to Marque Lawyers) is that the case was an example of exactly what not to do (here we agree).
They go on to say “If parties and arbitrators want to make Arb, Med, Arb as easy as one, two three, it’s as simple as… following the law to the T.” ~ Here we disagree! The Comedy routine of changing fedora’s ought not to be entertained, the parties before litigation ought to take reasonable steps to resolve the dispute and that we suggest is ideally to privately mediate the matter.
Consider this. If they went through private Mediation the chances of resolving the matter statistically are very high (over 60% in commercial disputes) and moreover their names would not have been dragged through the mud with public Court proceedings that are published and remain there forever as a stain against their names.
Perhaps if you are involved in a dispute, you might want to consider contacting us first for a free consultation whether Mediation could help you.
Source : Marque Lawyers
An article by Zohra Ali of Stacklaw:
I was recently involved in a case where someone was offered half a million dollars as settlement, declined that offer, lost his case in the Supreme Court and had a costs order made against him. He subsequently decided to make an application to the Court of Appeal, but he also lost the appeal and had another costs order made against him.
The costs of the two proceedings together are likely to equate to at least $250,000. This person has gone from potentially gaining half a million dollars to losing a quarter of a million.
“No win no fee” arrangements can lead to overlooking risk of adverse costs orders
The solicitors who ran this case ran it on a no win no fee basis. This means that if the client does not win the case, the solicitors do not charge any professional fees.
The no win no fee method can be quite enticing and useful for those who do not have the funds to engage in litigation but may have a strong case. The downside in these situations however, is that the risk of having to pay the other party’s costs often gets overlooked.
Outcome of litigation inherently unpredictable
Anytime someone engages in litigation, they need to consider any settlement offers received carefully and accept the fact that no matter how prepared you are or how strong a case you may feel you have, there is always the risk that you might not win.
And if you do not win, you can be subject to a hefty costs order that could completely change your life, and not for the better.
How can I still lose when my legal advisers are telling me I have a strong case?
This is a good question, and there are a number of reasons.
You may have a strong case, but you might be called to the stand to give evidence. If this happens, you might not be a good witness. Your solicitor is limited in how much guidance he or she can give you with respect to what to say in the witness box, as there is a fine ethical line between witness preparation and “witness coaching”.
Also, being in the witness box can be scary, nerve wracking and emotionally draining. These feelings can all impact negatively on how you answer questions and how you present yourself in the witness box. If you exude negative emotions or rub the judge up the wrong way, you could be inadvertently harming your own case.
All parties to litigation typically believe they have a strong case
Going to a final hearing is a gamble. You are placing the decision-making power into the hands of a third party, and hoping that on the basis of the evidence, they will make a decision in your favour.
While your evidence and claim may be strong, do not forget that the other party would not have taken the matter this far if they did not also believe they have a strong case.
Subconscious bias can cloud objectivity
Humans can declare objectivity in their decision making and can even appear to be objective. However, we cannot control the subjective influence our subconscious mind can have on a decision.
Sometimes we cannot consciously recognise our own biases regarding particular characteristics and/or behaviours. How can we ensure objectivity with respect to such biases if we do not even know that they exist?
The same applies to judges. You do not know the judge’s history, their story or their experiences. If the judge had a negative experience in the past and you bear any kind of resemblance or share a mannerism with someone who may have been the cause of that negative experience, this could be the cause of the downfall of your entire case.
At what point do judges decide who wins the case?
There is a theory among lawyers that judges have already made their decision fairly early on in the final hearing, and then work backwards to justify their decision in preparing judgment. While I do not know if it is true, I have noticed that whenever I read our firm’s fortnightly “Which case won?” newsletters, I instinctively lean towards a specific response without necessarily being familiar with the legalities of the case.
The majority of the time, the response I select is correct. Remember, judges review and become familiar with your claim before the final trial. The final trial is simply an opportunity for each party to present evidence and to present submissions, but if the judge already has some preconceived views about your claim, it may be difficult to persuade him or her to adopt a different viewpoint, especially if you are not aware of those preconceived views.
Different types of costs orders
If you have a case which is going to trial, you should become familiar with the different types of costs orders so that you know what kind of costs orders you may be facing.
Scaled costs are costs which are regulated by law and capped at a certain amount. Scaled costs are common in certain debt recovery matters where default judgment is given in favour of the plaintiff because the defendant never responded or filed a defence to the claim.
Solicitor/client costs are the costs that you pay to your lawyer. Unless you are in a no win no fee arrangement, these costs are payable to your lawyer regardless of the outcome of your case. Normally you would pay these costs on a weekly or monthly basis, depending on your solicitor’s billing schedule.
Party/party costs are the costs which the winning party in the case can recover from the unsuccessful party, in the event that an ordinary costs order has been made. The purpose of these orders is to compensate the winning party for their solicitor/client costs.
Indemnity costs are the costs payable to a successful party where the successful party has been subjected to unnecessary costs as a direct result of the conduct of the other party. The awarding of an indemnity costs order is made by the court upon an application from the aggrieved party.
An example of a circumstance where an indemnity costs order may be made is when a party has appealed the decision of a judge after being unsuccessful in their case, and subsequently loses that case too (as in the example given earlier).
Possible dire financial consequences of a costs order
If you receive a costs order against you, the costs order is automatically considered to be a court judgment. Bankruptcy notices can be served on the basis of the judgment.
If you are unable to negotiate a deal with the winning party, you could end up bankrupt. I say this because matters which go to a final hearing usually incur costs of $100,000 to $150,000 per party, depending on the complexity of the case.
If you appeal the decision and lose that too, as in the example at the beginning of this article, then you can add another hundred thousand and you are looking at $250,000 in costs being payable. Most people do not have $250,000 lying around.
Unless you are able to come up with that money (which could even mean needing to sell your house), you could be made bankrupt and most of your assets may vest into an appointed bankruptcy trustee who will then liquify your assets to satisfy creditor debts.
Emotional consequences of a costs order
Aside from the financial consequences of a costs order, there are significant emotional consequences as well. A costs order can put a strain on you and your family, and potentially cause marital problems.
It can cause you to feel resentment, regret and hatred. It can also cause you physical distress and real depression.
Bad reasons for going to court
Going to court and going to a final hearing is a serious matter with serious financial consequences. Do not let matters of principle, a misdirected search for justice or greed be the motivation for going to court.
Listen to your solicitors carefully, take settlement offers seriously and always be commercial and practical in your decision making. Do not let your heart rule your head, or you could end up in a far worse position than you were in when you embarked on the litigation.
Mediation in Civil disputes can be invoked at any time and as many times as the parties like. The process is without prejudice to the case and statistics show around 60% of cases can be resolved by the parties themselves through facilitative mediation.
Even where mediation is not successful in resolving the entire dispute it can narrow the scope of the dispute and save you time and money.
One thing that is for sure, is a mediated resolution to the case is something you will be happy with, because in the end, despite being facilitated by a professional mediator, it is your decision.
To find out more fill in this form and a qualified mediator will contact you for a no obligation free initial consultation to see if mediation is suitable for you.
Source : Stack Law
Mediation has become a popular method to resolve disputes, and with good reason.
Depending on the circumstances, mediation can offer numerous advantages over traditional litigation – these include the flexibility, confidentiality and cost-effectiveness of mediation, as well as the increased perception of ‘fairness’ when compared with a court’s ruling in which the parties have no ability to be involved in decision-making.
Despite its advantages, mediation – much like litigation – can be a tiring, stressful and even emotional process for the parties involved. As tempting as it might be to race through perceived ‘formalities’ at the end of a long day, it is critical not to rush through the process of documenting any settlement terms that have been agreed.
A 2017 case highlights the level of precision that clients and their advisers need to apply once a settlement has been reached, and before everyone leaves the mediation rooms.
Ihab Al Azhari and 27 Scott Street Pty Ltd attended a mediation to attempt to resolve a dispute over the financing and purchase of various properties. The parties settled at the mediation on written terms – or at least some of them thought they did.
The dispute returned to the Victorian Supreme Court1 after the parties could not agree whether the terms that they had all had signed were actually binding upon all parties.
The handwritten settlement terms reached at the mediation included:
These terms of settlement are in summary form of terms to be more fully engrossed.
The parties agree to settle this proceeding on the following terms:
(1) the first defendant will transfer unencumbered the following properties in the development known as The Lonsdale situated at 27 Scott Street, Dandenong (‘the land’)
(a) Retail 1(a) at value of $440,500
(b) Retail 1(b) at value of $597,500
(c) Retail 3 at value of $447,500 (‘the properties’).
(2) The properties will be transfered (sic) in fee simple after discharge of the construction funding facility.
The defendants submitted that the essential terms of the settlement were contained in the document and were sufficiently clear. Conversely, the plaintiff submitted that there was no intention on its part to be immediately bound by the terms, and that the agreement failed to include various essential terms applicable to a transfer of land.
The plaintiff asserted that the missing elements included the following:
1) There were no arrangements regarding any deposit to be paid and held.
2) There was no reference to any plan that identified the properties to be sold (as the properties were only a part of a development).
3) There was no explanation of what the ‘construction funding facility’ was.
4) If the settlement terms were binding, they amounted to a sale of land, and the settlement agreement failed to comply with the relevant Victorian Sale of Land Act.
The Court’s finding
On the subject of whether the settlement terms were immediately binding, Justice Almond had to consider whether the terms fell within the one of the limbs of the well-known decision of Masters v Cameron2, namely:
First, the parties may have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect.
Second, the parties may have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of them conditional upon the execution of the formal document.
Third, the parties may intend not to make a concluded bargain at all unless and until they execute a formal contract.
A fourth ‘limb’ has been subsequently identified in Sinclair, Scott & Co v Naughton3, namely “….one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms”.
After considering surrounding circumstances to interpret the parties’ intention on entering the settlement terms, including what passed between those parties at the mediation, his Honour concluded that he was “not satisfied that the parties had ‘reached finality’ or ‘were content to be bound immediately and exclusively by the terms agreed at mediation’. There are simply too many matters of importance on which the parties had not reached a consensus for it to be otherwise”.4
These ‘matters of importance’ included:
1) the lack of more specific reference to the identity of the properties, either by title reference and/or a plan
2) the absence of even pro forma-type terms for the sale of property, either at the mediation or at any time prior
3) the reliance upon a rather vague ‘marketing brochure’ for the properties rather than proper plans.
Almond J concluded that the lack of provision for these matters in the settlement terms “tends to suggest that the mediation terms were high level terms which were general in nature and not intended to be a concluded bargain”.5 His Honour also relied upon the absence of a date for the settlement to complete, and the undefined ‘construction funding facility’ to reinforce his view. The settlement terms were held not to be enforceable under the third limb of Masters v Cameron, and the parties were not bound without a further contact being executed.
Lessons (from the perspective of the Lawyers involved)
To some, this finding might seem artificial. In most mediations, the parties and their lawyers know exactly what is in issue, and what is included in any settlement agreement. Perhaps their settlement is simpler; perhaps the settlement agreement is drafted more clearly; or both.
However where the parties intend to create an immediately binding agreement, the terms need to unequivocally say so, and be crafted in such a way that there is no ambiguity as to their effect or the obligations they impose. This is particularly so in relation to real estate transactions that are strictly governed by legislation, or where there are cross-references to other existing documents.
Parties need to know that, once a deal is reached in principle, it may still take significant time to properly document it. Taking shortcuts at the end of an exhausting, but otherwise successful, mediation can unfortunately result in there being no settlement at all.
Lessons (from the perspective of the mediator)
Firstly in such a case where both parties are represented by their respective Legal practitioners the agreement to mediate ought to include the legal practitioners preparing in advance a draft of the proposed resolution of the case with areas of dispute left blank, but with the agreed information completed and compliant with relevant legislation.
In this case it would have been a simple matter of having the complete particulars of the properties and draft documents that were compliant with the Sale of Land Act, generally speaking the documents required to complete the transaction if there was no real dispute and it was just still in the negotiation stage.
Secondly where agreement is reached and it is the intent of the parties that the mediated outcome be binding, the mediator ought to have pre-prepared clauses to add to the agreement (which can be vetted by the Lawyers before the mediation) that can provide for the actual intention of the parties on the day, in this case, arguably that it be binding.
Thirdly if the parties are in breach of the binding effect of the mediated outcome, that there be an automatic provision, via a compulsory mediation clause, to return to mediation prior to proceeding to litigation, chances are, the matter if it was resolved once by the mediator, it could potentially be resolved again.
To find out how mediation could help resolve your conflict, fill in the form below with your details and a qualified Mediator will contact you for a free no obligation initial consultation.
1 Al Azhari v 27 Scott Street Pty Ltd & Ors  VSC 600 (5 October 2017)
2  HCA 72
3  43 CLR 310 at 317
4 Note 1 at .
5 Note 1 at .
Original Source : DibbsBarker
Many of my fellow bloggers on these pages, and perhaps many of the readers, will have found themselves in the position in which friends, colleagues, workmates or others call on your/our mediation experience at short notice, and in circumstances that are perhaps not ideal in terms of planning and preparation. One of the strategies I typically discuss with students in negotiation and mediation classes is how to recognise and deal with the “ambush” negotiation – those times when you suddenly realise that you’re in a negotiation or when the decision that is being asked of you really does need a prior negotiation; and you do need to hit the “pause” and “rewind” buttons in order to give yourself time to draw on those wellsprings of negotiation experience.
A recent experience of an informally-requested intervention leads me to think of some of the resources we can bring as well as some of the risks that lurk in the undergrowth. I’ll need to be somewhat elliptical, of course, in discussing this – as is the case with all mediation, characters and events needs to be disguised. But you’ll get the picture.
The basic scenario is this: a small committee of voted-on volunteers has been managing a significant budget for a larger enterprise; the purpose to which the budget is directed affects a far wider circle of individuals, all of whom have understandable concerns about the progress of work being done, the information provided from time to time, and the prospects of any budget blow-outs. Most of that wider circle of people are, of course, deeply relieved that they are not the ones dealing with the ongoing headaches – not least the challenge of ensuring compliance with local government rules and regulations.
Two significant challenges emerged for the committee: first, the wider circle of interested parties has a Facebook page which, on the one hand, could be a venue for sharing information and updates and, on the other hand, was more likely to be a site for some fairly brutal observations about the progress of the committee’s work and the integrity of the members. Second, within the committee itself, divisions emerged over the direction the work was taking, the time the project was taking, the risk to the budget . . . and, of course, personalities. While I’ve not been privy to any of the Facebook “conversations,” the reports I’ve had from a variety of sources remind me why I don’t “do” Facebook and why social media can be such a toxic source of factional misinformation and character assassination.
This is where the informal mediation came in. A couple of chance conversations over coffee led to the suggestion that we – my wife, Suzanne, and I – might be willing to talk to one or two people about the directions things were going, especially the descent of communication into name-calling and the risk to the decisions affecting the overall enterprise. The committee also expressed the hope that we might be able to “ease” the conversation towards a particular outcome. We agreed; we had those conversations; we await the smoke signals as to whether anything at all has changed – and though we’re reassured that the tone will be moderated on the Facebook conversations we’re not confident that there will be lasting peace.
Editors Note: Here is the first mistake already, when a Lawyer attempts to mediate a problem there immediately arises a conflict of interest between their clients interests and those of the adversary. A mediator must remain impartial and unbiased throughout the entire process. Ideally the parties to the process should not be able to tell what the Mediators position was other than neutral.
The reflections I have are these for the coincidental mediator:
1. There’s a risk that the request to engage one’s mediation skills (albeit informally and unofficially) can be a disguised request to do the difficult work the committee – or the individuals making the request – need to make. Think of those time when you might have been asked to act as mediator and, after initial inquiries, it becomes plain that what’s actually needed is a management decision which is being avoided by opting for mediation.
Editors Note: In such a Corporate environment where decisions need to be made, the coincidental mediator correctly identified the issue, but not the
opportunity. Corporate, Commercial and Contract Law often in these stages of
conflict and negotiation ought to invoke Mediation to do just that, help
facilitate a speedy resolution and enable the parties to make those management
2. There’s a risk in being seen as the messenger for one or other of the factions, in approaching selected individuals. This might well be a classical version of the mediator – indeed, some of the traditional models from which modern mediation borrowed have the mediator as the go-between (the “moccasin man” in American First Nations experience); and there will be many modern practitioners who only act in that go-between role, if the parties cannot or will not talk directly with each other. The risk nevertheless remains for the intermediary that she or he is perceived, fairly or otherwise, as the bearer of and agent for the message of the other party.
Editors Note: Once again the coincidental mediator finds himself in a position that a professional mediator should never be in. This highlights perfectly why when it comes to mediation it’s better to leave it to the people who have been professionally trained in facilitative mediation. This is also why Mediation sometimes gets a bad name, as the parties are told what is happening is “mediation” but in reality it is an ad-hoc situation that in the end ultimately does the opposite of what is intended with mediation, which is in these situations to preserve the relationships and build trust.
3. Equally, in understanding the position of those people with whom we talk, and giving them the possibly rare experience of being listened to, there’s a risk that we – the mediators – will be seen as allies. This is classic Karpman victim triangle stuff, in which the mediator is seen as a rescuer and is, just as easily, seen as an ally of one or other of the factions – and especially of anyone who feels already sidelined but the history of the preceding events. Indeed, we needed to remind one of those with whom we spoke that, just because we listened to and respected his stance, that didn’t mean that we were now his “supporters”. Think too of the success that the central character in Twelve Angry Men (the 1950s version) has in seeking and finding “recruitable allies”: the informal mediator might well be seen as one of those – and even if Henry Fonda’s character prevailed, being ‘recruited’ undermines that essential mediator role and neutrality.
Editors Note: Its clear the coincidental mediator has found himself in all sorts of bother now, unqualified, unprepared, seen as a rescuer of one side, an ally of a faction that has been recruited, there is no trust left here and worse still the relationships that did exist have only been soured with his involvement. Even worse for the Mediation profession when the parties start to talk about what happened and what a disaster “mediation” is.
4. There’s a risk of self-interested misreporting – for example, I heard indirectly that I apparently had told one of the parties that I (trusted adviser, legal trained mediator etc) that a thoroughly undemocratic process was warranted in order to deal with dissent. That had to be stopped at source promptly.
Editors Note: The coincidental mediator has all but ruined his own reputation at this stage and left the parties with a sour taste about “mediation” itself as a form of Alternative Dispute Resolution. This article is a good example of why parties when considering Mediation ought to start with places like the Australian Mediator Standards Board if they are genuinely wanting to resolve a dispute, then somethings are best left to the professionals.
It’s not all risk and recrimination, of course: the very act of agreeing to start a conversation is likely to have defused some of the animosity and dispersed some of the anxiety. What matters next is that this conversation – and the tone of the conversation – continues. And in that respect, the coincidental mediator can be at least a circuit breaker.
Editors Note: No even in conclusion, the coincidental mediator is mistaken, by his own recount of the events it can be seen he bumbled through the process and made a mess, caused distrust in the relationships, ruined his own reputation and the reputation of the mediation profession in the process. Circuit breaker indeed.
If you are interested in finding out more about Mediation services and how a professional mediator (who is accredited with the Mediator Standards Board and trained to National Mediation Standards) can help resolve your in-house Corporate dispute, please use the form below and a Mediator will contact you for a free no obligation initial consultation.
Original Article By : /, Source: Kluwer Mediation Blog
So, you’ve just received a statement of claim and you don’t know what to do with it?
Whilst you may be tempted to just add it to the pile of junk mail and forget about it, you may want to think twice about doing so. If you have received a statement of claim you have 28 days from the date you received it to consider your options and, if necessary, file a defence.
First of all you should consider that the Victorian Civil Procedure Act 2010,
Section 7 explains the overarching purpose in relation to civil proceedings is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute and goes on to say that you can use any appropriate dispute resolution process to resolve the dispute, you don’t “have to” go to Court and pursuant to Section 11 you have a right to any appropriate dispute resolution, Section 3 defines “appropriate dispute resolution” as a process attended, or participated in, by a party for the purposes of negotiating a settlement of the civil proceeding or resolving or narrowing the issues in dispute, including mediation, whether or not referred to a mediator in accordance with rules of court;
In the meantime, while you ponder whether you want to go to Court or Mediation
What happens if you just leave it in the pile of junk mail, will it just go away?
Unfortunately deciding to ignore a statement of claim can have a snowball effect. If. after 28 days, you decide to do nothing, the party who issued the statement of claim may apply to have default judgment entered against you. They may then seek to enforce the judgment to recover the debt by, for example:
1. Issuing a garnishee order to deduct payments from your wages or any rental income you usually receive to pay the debt
2. Issuing a writ allowing a sheriff to seize your personal property to pay for the debt
3. Commencing bankruptcy proceedings against you
4. A combination of the above.
If a judgment is entered against you this can affect your credit rating and this may make it difficult for you to obtain credit in the future.
So, what should you do if you receive a statement of claim?
As a starting point, you should seek legal advice about the options available to you having regard to the facts and circumstances of your particular matter. By doing this you will be able to place yourself on the front foot from the outset.
There are several options which may be available to you, for example:
5. It may be that you have a valid defence to the claim and should file a defence and defend yourself in Court proceedings.
6. You may be able to negotiate with the party that issued the statement of claim to reach a settlement without having to resort to protracted and costly Court proceedings. This will of course depend on your individual circumstances and the attitude of the other party.
7. You may admit that you owe the amount claimed in the statement of claim… You may be able to negotiate an agreement with the other party to pay the amount claimed by way of installment payments.
Mediation is an option that you can invoke at any time during proceedings, however at the time you are served a statement of claim it may well be the best time strategically to commence Mediation instead of either ignoring the matter or going straight to litigation.
Mediation firstly will often cost less than it would cost to have a lawyer even look at the statement of claim let alone work on it and file a defence. It will give you the opportunity to force the other party to come to the negotiating table and hear you out and your side of the story. Whatever is said in Mediation is “without prejudice” meaning it can not be used in Court against you, this is a protected right in Section 67 of the Civil procedure act.
The other party is obliged to come to Mediation otherwise any lawyers and Court costs incurred may go against them for not being reasonable and considering appropriate dispute resolution methods provided for in the Act.
Mediation gives you some control of the situation in that it enables and facilitates the parties themselves to resolve the dispute without the need of costly lawyers and court fees not to mention the time and stress and the toll that litigation can take.
These are just some of the many options that are available to you if you are served with a statement of claim.
To see if Mediation can work for you feel free to contact us using this form for a free no obligation initial consultation.
After have deciding to mediate and selecting a mediator, each litigants’ focus should shift to preparation. In our experience, mediation results improve significantly when the parties, not just the attorneys, come prepared for mediation. This post offers 7 pointers for parties to follow when preparing for mediation with their lawyers.
- Participate in Drafting the Mediation Statement. The written mediation statement primarily serves to inform the mediator of the issues in the case, the parties’ respective positions, and the real points of contention. Because the parties usually have a deeper understanding of the factual and economic issues in a case, the parties themselves need to be involved in the process of finalizing the mediation statement. The parties may suggest important points, such as a crucial missing fact or a tweak based on a business goal.
- Analyze the Parties’ Leverage. Depending on a variety of factors, such as the relative strength of the parties’ positions or time pressures facing a particular party, the parties may possess different types or amounts of leverage. Spend some time speaking with counsel regarding which party has the upper hand, how, and why.
- Brainstorm in the Abstract and Specific. In thinking about resolutions to propose at mediation, think strategically. And be specific. Considering abstract concepts is helpful, but do not stop there. Think about how specific terms may get fleshed out in the ultimate agreement.
For example, if a manufacturer is in a dispute with the designer of its Customer Relationship Management (“CRM”) system, the manufacturer may be willing to continue using the CRM if the software vendor will agree to provide technical support for a period of time. That concept may be a crucial component of a mutually agreeable settlement, but the manufacturer should consider the necessary details – how many months or years would the technical support be needed, how many hours per week or month must the designer be willing to commit to, who at the vendor will provide the technical support, and will the technical support include adding features or providing updates?
Considering the details before mediation will highlight potential problems and increase the likelihood of reaching a concrete mediation settlement.
- Think Creatively. Resolving a case before trial, whether by traditional settlement or through mediation, has many benefits, such as avoiding potential liability from an adverse result, avoiding additional attorneys’ fees and litigation costs, ceasing interruptions of employees’ and leadership’s time, and relieving the emotional stress created by litigation. Further, the American justice system does not often render “compromise” results. Mediation, on the other hand, empowers the parties to employ self-determination. For example, in a dispute with a supplier regarding the sale of goods, the parties could agree to a settlement that includes discounts, premiums or other accommodations in future transactions between the parties. A judge or jury could not award such a remedy.
- Consider the Other Side’s Perspective. As the old saying goes, “you cannot understand another until you walk a mile in his or her shoes.” Ask: if the opposing party performs this same analysis, what leverage will the other side perceive and what potential resolutions might be suggested? Sticking points and pitfalls may become clear. For example, in a warranty dispute, the seller may be much more interested in the message sent to other buyers by resolving the case at hand than the actual amount of money paid for the settlement.
- Set (Compromise) Goals Before Mediation. Litigants should approach mediation and their strategy with a goal in mind. In the adversarial process, most want to “win.” But one must ask, “What does winning mean in the context of mediation?” Mediation is not a trial, and if one approaches mediation with the goal of “winning” by getting everything available at trial, mediation almost certainly will not be successful. In other words, parties should seek to resolve the case on terms that are acceptable but not perfect.
- Communicate with Counsel. The lawyers almost certainly have been through mediation more times than the parties, and they can offer insight into the legal aspects of the case at play. Hopefully, the lawyer may also serve as a business counselor based on his or her experience, helping to identify business goals and mediation tactics to align with those goals. Most importantly, if the lawyer does not fully understand the client’s goals, he or she may utilize a strategy that is not best suited for reaching the desired outcomes.
The key takeaway is that the parties should work closely with their lawyers in preparing for mediation. The foregoing are not step-by-step directions, but rather an outline to use in formulating the appropriate mediation strategy and goals. Stay tuned for our next post, discussing tips for the day of mediation.
Source : The National Law Review
For further information or a free consultation, please use this form to contact us.