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Costs orders and litigation – beware unpredictable outcomes and always take settlement offers seriously

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
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

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Family lawyers urged to steer clients towards private mediation and now the Family Court’s has a blitz to clear its three-year backlog of cases

In the years I have practised in family law, I have become convinced of the many benefits of private mediation in resolving property and parenting disputes and enabling couples who have separated to come to a fair and balanced agreement about their future arrangements, writes Tim Couch.

In hearings this month, the Family and Federal Circuit Courts are encouraging parties to negotiate resolutions independently and remove their disputes from the trial list.

In my opinion, any family lawyer who genuinely wants to help their clients will encourage them to pursue this course, rather than to make a beeline for court.

As anyone who practises in family law will be aware, most family law registries are presently experiencing unprecedented delays in determining cases. This is in part a result of an increased number of litigants and an insufficient number of judges. Our judges work tirelessly to resolve family law disputes as fairly and as efficiently as they can. But there are only so many hours in the day.

Because the system is overloaded with cases, many litigants experience delays of up to 18 months or even longer before their case is determined at a final hearing. This is becoming the norm in a number of registries. The longer the delay, the longer the uncertainty endured by the client. Private mediation provides a potential shortcut through this uncertainty.

Mediators, however, say the courts must do more to connect struggling families with qualified experts, not leave them to figure it out on their own.

Adelaide-based mediator Alison Shaw said families were left relying on lawyers who may lack mediation accreditation, putting them at risk of “being failed a second time”.

“People need someone who is actually committed to and confident in the mediation process, not someone who thinks they can do it because they’re a lawyer,” she said.

“If mediation fails, all these people will have to look forward to is another three-year wait because they have hopped off the litigation conveyor belt.”

A second advantage of private mediation is that it gives the client more control over the process. In the Family Law Courts, the judge controls and manages the court process from start to finish. The court determines who will hear the case, and when.

By contrast, a private mediator can be chosen by the client, their former partner and their respective solicitors.

A third advantage of private mediation is its cost-effectiveness. Litigating a family law dispute is rarely a cheap exercise. There is almost always a mountain of legal work involved in getting a case into court and presenting it in the best possible way in the hope of achieving a sound outcome. Not to mention regular court appearances.

This usually takes hours and hours of effort and preparation on the part of the solicitor, resulting in significant legal fees. By the time of the final hearing, the legal bill can amount to tens of thousands of dollars [for each party], and possibly more. A successful mediation, on the other hand, will only cost a tiny fraction of this amount, and if successful, could achieve the same or a similar result.

Finally, a failed mediation is rarely a waste of time. Even if it has not succeeded in resolving the dispute in its entirety, the matters that were in dispute at the start of the mediation have usually narrowed dramatically. Often with some further reflection and legal advice after the mediation, it may be possible to reach an agreement on any unresolved points without having to commence court proceedings.

If that’s not possible, the matters left for the court to determine have often been sharply reduced. In turn, less court time should be required to determine the case – maybe two days instead of five or six or more. This can often mean that the court can find the time to determine the case much sooner. And the chances of settling the case before a final hearing have likely increased as well.

In my experience, when couples opt to take their dispute to the Family Law Courts, they do not necessarily believe that this course of action will produce the best possible result.

Rather, warring couples can be motivated by anger and the desire to make their ex-partner suffer. It’s only human nature to long for vengeance in circumstances where a relationship sours and we feel rejected, slighted, humiliated or betrayed. It’s a natural response.

Sometimes the desire to keep fighting is not even motivated by concerns over unfair apportionment of money or property or time with children. Instead it can be based on an entirely emotional impulse that can border on obsession – for example, a client may be convinced that their ex had an extramarital affair and is determined somehow to “make them pay”.

Such impulses may be understandable, but they definitely work against the client’s best interests. I do my utmost to make clients whose anger has eclipsed their reason understand that no court is ever going to give them everything they want, while leaving their ex with nothing.

A court will always try to make decisions that are as fair to all parties as possible, so what the client is really facing is a choice between two types of compromise – the first reached voluntarily, relatively quickly and relatively cheaply, with both parties having input into the details of the arrangements; the second being a court-imposed compromise in which all the details have been determined by a judge at much greater expense and after a much longer delay. And quite often, neither party is entirely happy with the outcome.

As I see it, clients wanting to fight their ex and make them suffer is not the only obstacle to private mediation. The other obstacle can often be the approach adopted by the lawyers they retain. Hand on heart, I have to say that there are lawyers who will not even bother to try to steer their clients towards compromise, preferring to sit back and allow the flames of hostility to burn in the knowledge that a protracted legal battle will generate far more in legal fees.

A Lawyers Perspective

Some practitioners are notorious for letting a family law matter unnecessarily drag on for months and sometimes years before finally giving strong advice to their client on the steps of the court on the day of the final hearing to settle. It is hard to think of a reason for such an approach other than the desire to drive up the legal bill.

Yes, it’s true that if you encourage your client to attend private mediation and that mediation is successful, you will earn much less in professional costs than you would from a protracted court battle.

But ask yourself, why did you become a lawyer? Was it altruism, so that you could use your legal skills to help people in the most efficient and effective way possible? Or was it greed, so that you could extract every possible last cent from the general public, individually and collectively?

I appreciate that private mediation will not be suitable in all family law cases, and for a variety of reasons. However, I think it is a fair statement to say that private mediation will be suitable in the vast majority of family law cases.

Family lawyers are unlikely to ever run out of work. Business will always be steady, if not busy. As long as the sun continues to come up in the morning, couples will separate, and will need help to disentangle their lives from one another.

From a perspective of a party to a family law dispute

You need to ask yourself, do you really want to run the gauntlet of what is the Family Law Courts, the costs associated with it, the delays now going on 3 years with some Lawyers part of the cause of those delays only to tell you when you reach the trial date to settle, if you think its time to take control of your life, why not try private mediation.

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.

Sources : Lawyers Weekly by Tim Couch is a lawyer in the family law team at Stacks Law Firm,  The Advertiser (Adelaide Now), Danny Jovica – NMAS Accredited Mediator.

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Settling at mediation: be careful with the terms

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.

Background
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.

Footnotes
1 Al Azhari v 27 Scott Street Pty Ltd & Ors [2017] VSC 600 (5 October 2017)
2 [1954] HCA 72
3 [1929] 43 CLR 310 at 317
4 Note 1 at [32].
5 Note 1 at [41].

Original Source : DibbsBarker

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The Coincidental Mediator

Coincidental Mediator

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
decisions.


 

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

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Why some women walk away from the family court

On the surface, their two-decade marriage might have looked a success: a large home, prestigious cars in the driveway and a gaggle of children growing fast.

But when Sarah’s* husband returned home each day from his high-paid job in Melbourne’s business district, she bore the brunt of his frustration and violence.

He urinated on her, cut her hair, assaulted her and forced her to sleep on couch cushions on the floor rather have her “dumb, dirty, stupid” presence in their bed.

When Sarah eventually fled – not a dollar to her name – and took out a restraining order, her wealthy husband warned she was “never going to get a cent”.

It is at this stage that Sarah could have considered Mediation as a mechanism to bring her husband to the negotiating table, mediation today can be conducted in a safe-space, where the parties can be in separate rooms in case of fear of violence and intimidation.  There are also online facilities available where it can be conducted from the safety of your own home.

Many disadvantaged women simply walk away from their entitlement to a fair division of property when relationships end because of a lack of quick, affordable ways to resolve family law disputes, according to new research from the Women’s Legal Service Victoria, launched on the eve of International Women’s Day.

A quick affordable method to resolve this could have been Mediation, had Sarah known of the options available to her, even if the matter had already gone to compulsory family mediation and a 60i certificate had been issued, there was nothing preventing Sarah from taking control of her life and invoking private mediation, this time with a qualified Mediator of her choice, the mediation would still be unbiased and facilitated in a neutral capacity but at least Sarah could feel comfortable with the person doing the mediation.

Dividing assets, like superannuation for example, through the family law system is far too complex for someone with no legal training, the service’s lawyers say.

Researchers interviewed about 50 clients who had small amounts of property to divide up after separation, with the average size of settlements about $71,000.

But these relatively modest sums could make a crucial difference to the lives of these women, who were often battling financial hardship.

They told heartbreaking stories of being admitted to hospital from court-related stress, or spending a year in a court battle, having to interpret legal documents with a dictionary in one hand.

Even before matters reached court, two-thirds of women had their claims delayed because their ex-partners were unwilling to make a full and frank disclosures of their financial position.

This meant they had to begin onerous court proceedings, rather than settle matters through negotiation,  however once more, appropriate dispute resolution through Mediation may have helped achieve a faster result.  Even if there had been a failed attempt at mediation in the early stages of the break up when things were highly emotionally charged,  as time passes, the opportunity to revisit mediation for resolution should not be overlooked.

The relevant laws are incredibly complicated and hard to interpret, and accessing any rightful ownership is a many-step process, said Helen Matthews, the director of policy at the legal service.

“At the moment it’s one-size-fits-all approach, no cheap or efficient way of dealing with smaller matters in the current system,” Ms Matthews saaid.

The majority of women interviewed – almost 90 per cent – had experienced family violence, including economic abuse, and all said the delays they experienced in resolving disputes only exacerbated their financial difficulties.

Once more, had Sarah been informed of the low cost solutions available with Mediation and the speed at which it could resolve things so she could get on with her life, things may have been very different.

Sarah’s only option when she left her husband was to sleep in a donated tent at the local showgrounds. Their children remained in the family home – he had never been violent towards them and Sarah felt they would be safe.

For three months she lived on cornflakes and canned food until she was placed in community housing.

Through her eight-year family court matter, Sarah had to constantly subpoena her partner – at more than $100 a pop – who did not want to disclose his financial situation. She was eventually awarded a $100,000 settlement.

Sarah continues to be terrified of her ex-husband, and said when she saw him at the court hearing she almost wet herself with fear. Negotiation through a third party would reduce this trauma for women in her position, she says.   The best qualified third party in such a situation is an appropriately qualified Mediator who has been accredited through the National Mediation Accreditation System and is registered with the Mediator Standards Board of Australia.

Family violence is only rarely taken into account in determining property settlements, researchers found, despite the fact that economic abuse often leaves women with limited resources.

Mediation however can also help manage high conflict cases such as Sarah’s through use of Restorative Justice and Shuttle Mediation processes along with online services that are available now where you can participate in the mediation from the safety of your own home.

There should be a streamlined system for small property matters, and strengthened obligations for financial disclosure, researchers say.

Sarah, who found the Victorian Women’s Legal Service by searching the terms “women and help” on a computer in the local library, says the free legal advice and support saved her life.

“I was suicidal and could see no future for myself. I’m so appreciative of them.”

*Names have been changed for safety reasons, article original source from the Age.

For further information on if Mediation can help you, please complete the contact form below for a free initial consultation.

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I’m being sued, what should I do?

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.

Source : Watkins Tapsell Solicitors,  Edited by Danny Jovica NMAS Accredited Mediator.

To see if Mediation can work for you feel free to contact us using this form for a free no obligation initial consultation.

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Active Preparation Leads to Better Mediation Results

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.

  1. 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.
  2. 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.
  3. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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Restorative Justice & Family Mediation

For many people experiencing a family breakup as a result of domestic violence,  they look to the Family Law Courts for justice, perhaps not realizing this is not the venue where they will get justice.

The perpetrator of domestic violence often goes unpunished and for the victim going to Court there is some expectation that the Family Court system will finally give them that closure.    Unfortunately it is an unlikely outcome as the Family Court system is there to resolve disputes between the parties when it comes to property and parenting matters.

It is not a place where the victim can expect that the perpetrator will be finally brought to answer for the harm they have done, with cases involving Domestic Violence the offender more often than not does not get punished, an AVO is in place to hopefully prevent further violence but often there is no justice for the victim.

Would Restorative Justice help?
Restorative justice is a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims, it is an approach to justice that personalizes the crime by having the victims and the offenders mediate a restitution agreement.

For some perspective courtesy of Mediate BC Blog restorative justice can assist not only in Domestic Violence cases but also with cases of breach of trust and fidelity.  The author says… I have yet to mediate a family dispute that did not involve some kind of harm in addition to the very real and challenging problems confronting the participants. I suspect that this is true for you as well. About 15 years ago I was introduced to the idea that solving harm and solving conflict are two different things entirely.

The Justice Problem

How can we resolve the harm that occurred through accountability, amends and support? Here the person causing harm has moral obligation. 

The Conflict Problem

How can we negotiate a mutual solution to the mutually agreed problem? Here there is moral neutrality.

I believe it is this difference in the moral status of the participants that creates the need for different and distinct processes.

In my experience, and according to the material I have read, any Justice Problem is going to make solving the Conflict Problem more difficult. The truth of this was painfully apparent when I was working with one couple.

I was helping this couple with a parenting and financial agreement. They had been separated for 1 year and were primarily communicating through their 9-year-old son. Their separation occurred after an extremely harmful verbal attack. The wife had committed adultery years earlier and they had managed to remain together despite not dealing with some of the key factors leading up to and resulting from the infidelity. She was beginning to show some of the same behaviours that had occurred last time and the husband freaked out. Both acknowledged that this was a terrible outburst and was unacceptable.

Due to his shame and guilt and justified anger at her newest betrayal of their marriage, and her fear and shame at his reaction and how she had triggered it, they had stopped talking to each other. As co-parents they did have many conflict problems they needed to solve, so some communication was required. Thus the inappropriate use of their son as a go between.

I was aware of this trigger event when we started dealing with the co-parenting agreement, but they initially told me they wanted a conflict-focused process geared towards getting the co-parenting agreement done. It quickly became apparent that the trigger event was looming large and it was a huge problem barring our way forward.

I tested to see if a restorative process would be possible to resolve enough of the Justice Problem (his outburst) to proceed with the co-parenting agreement. Was he willing to take responsibility for his actions and communicate this with her? Yes he was. He was horrified at what he had done and deeply needed to express this. Was she open to communication with him about this and to hear his apology?  Yes she was, though for safety reasons she wanted it to be in written form and she wanted to be able to respond in writing. He was open to this process.

So I coached him on how to write a helpful apology letter and we worked through three drafts together. I delivered the final draft to her and sat with her while she read it. We talked some things through and then she went home to write her response. She shared a draft with me which was excellent and I passed that on to him and helped him process it. Both reported a significant sense of relief and resolution and an increased openness to communicate directly with each other.

We were then able to move towards completing the co-parenting and financial agreements.

This integration of a restorative process (dealing with the harm) with a conflict resolution process was able to get the participants unstuck and moving towards a better future as co-parents. There are many other methods and tools that restorative justice brings to Justice Problems that can help transform an intractable problem into a manageable one.

I often describe to my clients that they have a choice of what they want to deal with in a mediation with me.  We can deal with the justice issues and then deal with the conflict issues, or we can just deal with one or the other.

Given that many family problems are tied into abuse or unhealthy family dynamics it is a regular occurrence that I will need to remind clients of that choice:

Are we seeking justice or are we problem solving?

Sometimes we shift between the two dynamically.

If given permission, I will always deal with the justice issues first. Often I don’t get permission to work with the justice problem, so other supports are required for the person who caused the harm and the person who experienced it (sometimes these roles are shared by all). This is why I like to have a team of legal, health and financial professionals to equip my clients to cope with the often complex and high value problems they bring to me.

How have you thought about the moral status of your clients and the role of harm in solving Conflict Problems?

How do you work to overcome the barriers that Justice Problems bring to solving family disputes?

Contact us with the form below for a free initial consultation to see if Restorative Justice Mediation is an option for you.

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Financial abuse of the elderly is a growing problem for police, bank workers, and lawyers.

Newly established elder abuse hotlines are being swamped with calls, many of which relate to financial abuse.  Financial advisers, bankers and lawyers are all calling for new measures to address financial elder abuse and the Attorney General, Christian Porter, has flagged a ‘National Plan’ to address ‘elder abuse’ to be released later in the year.

So what should the new measures look like?
Click on the play button to listen to the broadcast on ABC Radio broadcast Presented by Hugh Riminton.

If you are experiencing elder abuse or know someone who is, contact us with the form below.

Mediation is a good way to seek a compromise resolution that preserves relationships. It gets parties who don’t agree to sit down and discuss their differences in a calm, controlled setting. Also, it’s generally less expensive than going through a trial and can keep the messy details of a case out of the public’s eye.

Mediating Elder Abuse Disputes

For elder abuse disputes among family, mediation can be a better way to resolve an elder abuse matter. It causes fewer hard feelings and may lead to a better understanding between parties (this is part of the idea). If you want to be able to sit down with that family member come the holidays, sitting down in mediation is the better option.