Posted on Leave a comment

If you’re unhappy with your mediation outcomes, could it be your mediator was not qualified?

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[1] in their performance and resolution of cases only get $1,350 per day[2].

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.

 

Footnotes 

[1] 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.

[2] 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.

Posted on Leave a comment

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

Posted on Leave a comment

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