THE PIDDINGTON SOCIETYMEDIATION MASTERCLASSFRIDAY 11 NOVEMBER 2016

“Ripeness”: when to mediate? “I do not see any particular advantage in reserving mediation until the case is about to be tried. To the contrary, experience suggests that much is to be gained by referring cases to mediation early on the basis that if they do not settle at the first mediation conference, an assessment can be made of the further steps which need to be taken with a view to improving the prospects of settlement at a subsequent conference.”

The Hon Chief Justice Wayne Martin QC, AC, ‘Timeliness in the Justice System – Ideas and Innovation’ (Speech delivered at the Monash University Law Chambers, Melbourne, 17 May 2014).

“Ripeness”: when to mediate?

“Ripeness”: when to mediate? District Court of Western Australia

Circular to Practitioners CIV 2012/2 “As mediation is more of a process than an

event, the Court may direct the parties to attend a mediation conference at any stage of the proceedings. Thus, if the parties consider it appropriate, they can apply for the Court to list the action for a mediation conference as soon as the Memorandum of Appearance has been filed.”

19 Nov 2015

23 Nov 2015

25 Nov 2015

5 Jan 2016

8 Jan 2016

27 Jan 2016

15 Feb 2016

District Court Claim for $96,094 by Company A against Director B

Company C exited administration

Writ filed with Court

Writ personally served on Director B

Defence filed with Court

Attended Court and listed for matter for mediation

Early mediation

Settlement reached for $65,000

Monies received and sent to client

“Ripeness”: when to mediate? Mediation of a dispute at an early stage will not always

be appropriate. This is particularly the case where the dispute is complex and there are more than 2 parties.

Referring a dispute to mediation early: increases the prospects of resolving the dispute at an early

stage; reduces the likelihood of lengthy, protracted and

expensive proceedings; and allows parties to come to more flexible solutions that

would not be possible at trial. The benefit of referring cases to mediation early is that

even if they do not settle at a first mediation conference, an assessment can be made of further steps to be taken that will increase the prospects of settlement at a later conference (e.g. information gathering, expert report).

Preparing for mediation

Law Council of AustraliaGuidelines for Lawyers in Mediations

“Preparing for a mediation is as important as preparing for trial. A lawyer should look beyond the legal issues and consider the dispute in a broader, practical and commercial context.”

Preparing for mediation Supreme Court of Western Australia

Consolidated Practice Directions “The practitioner or counsel should have discussed the following matters with the

party well prior to the mediation: the mediation process [Give your client the Mediation Guide published by the

Court]; the prospects of succeeding in the action (or successfully defending it); the relative strengths of the other parties’ cases; possible outcomes at trial, including best [BATNA], moderate and worst [WATNA]

case outcomes; the costs incurred up to the date of the mediation conference; the costs likely to be incurred in taking the matter to trial; the costs likely to be recovered if the party wins [BATNA]; the costs likely to be incurred if the party loses [WATNA]; the interests of the parties; any particular outcomes which the party would like to achieve from the litigation; and possible solutions to the dispute, including outcomes which cannot `be obtained

following a trial.” [thinking outside the square]

BATNA = Best Alternative to a Negotiated Agreement What would be the best outcome for your client if they do not reach a resolution at mediation? WATNA = Worst Alternative to a Negotiated Agreement What would be the worst outcome for your client if they do not reach a resolution at mediation? The reasons why you should develop your client’s BATNA and

WATNA prior to the mediation are: Without knowing your BATNA or WATNA you are negotiating with your eyes

closed (Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16). A BATNA can be conveyed to the mediator which then enables the mediator

to suggest options which may or may not be attractive to the other party. The more attractive a party’s BATNA the greater their power. Provides the party with parameters for resolving a dispute which will lie

between each side’s best and worst result if no agreement is reached. Encourages the development of practical and realistic alternatives.

Preparing for mediation

Preparing for mediation:Options Matrix

Preparing for mediation:Ensure you advise your client about legal cost

Standard Supreme Court Costs Order By ……(date)……… the solicitors for the parties give their

client a memorandum setting out: (a) The exact costs and disbursements to the date of the

memorandum; (b) The estimated future costs and disbursements up to and

including a mediation conference lasting no more than one day;

(c) The estimated future costs and disbursements to and including trial, and the length of trial assumed in making that estimate; and

(d) The estimated party and party costs recoverable by, or payable by, the party in the respective cases of success or failure at trial.

See also District Court Rules 2005 (WA) r36 – The Standard District Court Mediation Orders require a practitioner to comply with costs disclosure 7 days prior to the mediation.

Preparing for mediationDevelop a relationship with the mediator before the mediation if you can

District Court of Western AustraliaCircular to Practitioners CIV 2012/2

“not less than 3 clear days before the mediation conference, each party must send to the Registrar presiding at the mediation a bundle of documents comprising:

(a) any schedule of damages served pursuant to paragraph 5; and

(b) a copy of any significant without prejudice correspondence exchanged between the parties;

(c) a copy of any document that would be useful for the Registrar to have to facilitate the mediation [eg the contract allegedly breached or a key expert report].”

Supreme Court of Western AustraliaConsolidated Practice Directions

The mediator may direct that the parties provide information to assist them as mediator to efficiently and productively manage the mediation.

This could include providing: Copies of key documents. Copies of without prejudice correspondence. Copies of experts' reports. A chronology of relevant events. A mediation briefing note. A copy of the memorandum of costs provided in

compliance with the usual orders. A direction to provide these documents will be by

letter from the associate to the mediator. At the conclusion of the mediation, any documents provided will be kept confidential or be returned to the parties.

Preparing for mediationEnsure the right people attend

District Court of Western AustraliaCircular to Practitioners CIV 2012/2

“Where a party is represented by an insurer, a properly authorised representative of the insurer must attend the mediation conference in person, with or without the insured. The Court’s usual practice is that a party (or their representatives) who resides in another state or overseas will be required to attend in person rather than simply being available by telephone. This includes insurance representatives… A representative of a party who attends a mediation conference must have authority to compromise the case.”

Supreme Court of Western AustraliaConsolidated Practice Directions

The following people must attend the mediation conference in person:

(i) each party who is a natural person; (ii) if a party is not a natural person, a

representative of that party familiar with the substance of the litigation and with authority to compromise it;

(iii) where the settlement negotiations are to be conducted on behalf of a party by its insurer, a representative of the insurer with authority to conduct settlement negotiations and to settle the case; and (iv) the solicitor or counsel, if any, representing each party

Aaron’s Concluding Remarks:Preparing for Mediation

Turn your mind to when it is ripe for your client’s case to go to mediation. Is it appropriate to go early? If so, go for it in my view.

Meet with your client prior to the Mediation (not on the same day as the Mediation). Make sure you discuss with them the requirements set out in the Supreme Court Practice Direction. This

includes: Giving them a copy of the new Mediation Guide which is available from the Supreme Court Website; Discussing the merits of your client’s case and possible outcomes (BATNA and WATNA); Discussing outcomes that may not be able to be achieved at trial; and Giving cost disclosure

Confirm your advice in writing prior to the mediation. Let your client sleep on it. Ensure the right people attend: make sure representatives of insurers and corporate bodies with flexible

settlement authority attend. Get off on the right foot with the mediator: if an Order has been made to (1) provide documents to the

Mediator before the Mediation; or (2) attend a Preliminary Conference, make sure you give them documents that you think would assist if you were mediating the dispute and you are prepared. These will likely include contracts or excerpts of contracts, letters of demand, without prejudice offers previously exchanged between the parties and any expert reports on liability or quantum.

Is there any information you need from the other side before the mediation? If so, ask for it. Avoid being ambushed at the mediation.

Be across the file (know the parties’ pleadings and issues in dispute). Preparing for mediation is as important as preparing for trial.

THE PIDDINGTON SOCIETYMEDIATION MASTERCLASSFRIDAY 11 NOVEMBER 2016