handshkeiconMediation Protocols

  • All enquiries regarding availability should be directed to Anthony (losurdo@12thfloor.com.au; 612 9223 3181) to his clerk, Bob Rymer (brymer@12thfloor.com.au; 612 9232 4016) or to his assistant clerk, Kate Gooch (kgooch@12thfloor.com.au; 612 8029 6305).
  • Mediations can be arranged for a day (8 hours or part), half a day (4 hours or part) or for such other period commencing at times that suit the parties.
  • Being conscious of the principles of proportionality, fees may be set in consultation with the parties having regard to the complexity of the issues. All enquiries regarding fees should be directed to Anthony.
  • Anthony is based in Sydney but will conduct mediations at any place convenient to the parties upon appropriate arrangements being made.

A party’s choice of mediator may have an enormous impact on the success of the mediation.

There are four paradigm models of mediation: the settlement, evaluative, facilitative and transformative models (Source: Boulle, “Mediation Principles, Process and Practice”)

Most mediators are trained in the settlement model of mediation. This has as its main objective to encourage incremental bargaining towards compromise at a central point between the parties’ original positional demands.  It involves limited procedural intervention by the mediator apart from encouraging the parties to put their positions in a structured and rational manner. This style of mediation is often utilised in some commercial, personal injury, insurance and industrial disputes.

An evaluative mediation, also known as advisory, managerial or normative mediation has as its principal objective to reach a settlement according to the legal or other rights and entitlements of the parties. It requires a mediator who has expertise in the substantive areas of the dispute and who can bring that expertise to bear on the content of the negotiations including assisting the parties to appreciate the litigation, costs, reputational and other risks associated with the adversarial process. Evaluative mediation is most commonly used in commercial, personal injury, trade practices, matrimonial property, anti-discrimination and some succession disputes.

Facilitative mediation, also known as interest-based mediation aims to avoid positions and negotiate in terms of the parties underlying needs and interests instead of their strict legal entitlements. It is commonly encountered in community, family, workplace, environmental and some partnership disputes.

Transformative mediation, also known as therapeutic or reconciliation mediation, aims to address the underlying causes of a dispute with a view to improving relationships through recognition and empowerment. It is usually deployed in matrimonial, family, some workplace and continuing relationship disputes.

Anthony is well versed with each of these models of mediation but is particularly adept at deploying the settlement and evaluative models.

Anthony is able to offer mediation rooms located at 174 Phillip Street, Sydney, for a 2-3 party mediation at no cost to the participants.

  • A mediation agreement will be prepared and provided to the parties to be completed, signed and returned prior to the mediation.
  • That agreement will provide an estimate of the mediator’s fees and alternatives regarding securing the payment of those fees.
  • It will also contain a confidentiality undertaking which all participants in the mediation, including the parties respective legal representatives are requested to sign.

Directions:

  • Once retained, Anthony will determine, with the assistance of the parties, where necessary, what is required to prepare the dispute for mediation and he will provide the parties with appropriate directions in that regard.
  • Those directions will include a timetable for the preparation of an agreed mediation bundle of documents and for the exchange of a mediation summary of the parties’ interests.

Preliminary Conference:

  • A preliminary conference is often useful to discuss preparatory activities and attend to organisational matters. A preliminary conference may also assist in assessing the parameters of the dispute, delineating the issues that will be addressed at the mediation and discussing the best manner of preparing for mediation. A preliminary conference can be convened at a time and venue to suit the legal representatives of the parties.

Agreed Bundle of Documents:

  • The parties should be aware that in preparation for the mediation, Anthony will read thoroughly all documents that are provided to him with a view to determining the real issues in dispute and the manner in which a settlement may best be achieved or structured having regard to the competing commercial, personal, reputational, emotional and other interests.
  • Accordingly, parties are requested to provide documents touching upon or concerning the real issues in dispute and which may be relevant to a party’s interests. Typically, those documents will, in the case of disputes which are the subject of court proceedings, include the latest pleadings and the evidence relied upon by each of the parties (affidavits, experts’ reports and business records). In the case of disputes that are not the subject of court proceedings, typical papers to be placed in the bundle will include all documents evidencing the relationship between the parties and any correspondence, including emails and the like, which identifies the nature and ambit of the dispute.

Mediation Summary of Parties’ Interests (Position Papers):

  • The parties will be encouraged to exchange and provide to the mediator a summary of their respective interests.
  • The papers should provide a brief outline of the background to the dispute including the relationship between the parties, a summary of the factual and legal issues and a party’s understanding of the opposing party’s position on each issue, identify any issues that are agreed or are not in serious dispute, and highlights key documents. The papers should also provide details of all reasonable attempts made by either party to resolve or narrow the issues including, without limitation, any offers of compromise served under the Rules of Court or otherwise.
  • Wherever possible, the parties should focus on matters which could provide a common platform for a negotiated outcome.

Professional Advice:

  • The parties should ensure that they obtain any tax-related, accounting or any other professional advice that may be relevant to any proposed settlement before the mediation.

Authority to Settle:

  • It is critical that a person who has full authority to settle the dispute and to sign any necessary documentation to give effect to any settlement be in attendance at the mediation.

Draft Settlement Documents

  • The parties should liaise and agree as to which of them shall carry primary responsibility for the preparation of a draft document(s) (for example, a deed, agreement, short minutes of order and the like) to be made available at the mediation and which can be used as a template to record any resolution reached.

Arbitration Protocols

  • Being conscious of the principles of proportionality, fees may be set in consultation with the parties having regard to the complexity of the issues. All enquiries concerning fees should be directed to Anthony.
  • Anthony is based in Sydney but will conduct arbitrations at any place convenient to the parties upon appropriate arrangements being made.

Anthony is able to offer arbitration rooms located at 174 Phillip Street, Sydney for a 2 party arbitration at no cost to the participants.

Most disputes are referred to arbitration pursuant to a dispute resolution clause contained in the agreement governing the commercial relationship between the parties.

  • There must be an agreement in writing for the Commercial Arbitration Act 2010 (NSW) (Act) to apply (s 7).
  • The parties and the arbitrator must liaise with a view to agreeing the terms of the arbitration agreement including the scope of the issues upon which the arbitrator is required to adjudicate.
  • Part 5 of the Act deals with the conduct of arbitrations and should be considered closely.   In particular, s 19 provides that, subject to the provisions of the Act, the parties are free to agree on the procedure to be followed by arbitrators in conducting the proceedings. Failing such agreement, the arbitrators may, subject to the provisions of the Act, conduct the arbitration in such manner as they consider appropriate.  It is important to remember that there are numerous provisions in the Act that will apply to the arbitration unless the parties agree to opt out of them, including a provision that the arbitration will be private and confidential.
  • Achieving agreement as to the form of the arbitration and procedure is one of the key objectives of the first meeting of the parties and the arbitrator (usually referred to as the preliminary conference or first directions conference).
  • At the preliminary conference, the arbitrator will make appropriate procedural directions.   Guidance on what directions may be appropriate can be found in the notes published by arbitral bodies such as Resolution Institute (formerly IAMA) and ACDC (Australian Commercial Disputes Centre).
  • The arbitrator will also at this time make arrangements to secure his fees and foreshadow further directions conferences for case management with a view to resolving the dispute in a cost effective manner, informally and quickly (in accordance with the requirements of s 1C of the Act).
  • It should be remembered that once appointed an arbitrator has wide powers to make orders in the nature of interlocutory relief such as injunctions, freezing orders, orders for security for costs and orders preserving evidence. Those powers are adumbrated in s 17 of the Act.
  • Party autonomy is the overarching principle of arbitral proceedings.
  • Parties are free to agree on the:
    – number of arbitrators;
    – procedural rules;
    – place of arbitration;
    – language of the proceedings; and
    – the timeline for written submissions and hearings.
  • The dispute resolution clause in the agreement between the parties will usually specify the procedural rules that are to govern the arbitral proceedings, the law of the arbitration and the seat of the arbitration.
  • After a request for arbitration is made, the arbitral panel will, in consultation with the parties, settle terms of reference and directions will be made for the provision of a statement of claim, defence and evidence.
  • The UNCITRAL Model Law on International Commercial Arbitration, 2006 empowers an arbitral tribunal to award interim relief to secure the status quo, protect the arbitral proceedings, freeze assets and preserve evidence (Article 17(1) & (2)).

Expert Determination Protocols

All enquiries regarding availability should be directed to Anthony (losurdo@12thfloor.com.au; 612 9223 3181) to his clerk, Bob Rymer (brymer@12thfloor.com.au; 612 9232 4016) or to his assistant clerk, Kate Gooch (kgooch@12thfloor.com.au; 612 8029 6305).

All enquiries regarding fees should be directed to Anthony.

  • Expert determinations can occur in many different situations.
  • Some contracts require parties to refer a dispute to expert determination before litigation is commenced.
  • Many expert determinations are agreed upon by parties without being required to do so by underlying contracts.  In some circumstances, a court may refer a dispute to expert determination or appraisal.

Prior to appointment, the parties will be required to agree a number of matters, each of which must be reflected in the expert determination agreement which the parties and the expert will be required to execute including:

  • the issues or questions that the expert is required to consider;
  • whether the determination is to be binding on the parties;
  • the timing of submissions and whether they are to be in writing, oral or a combination;
  • whether the determination is to be confidential;
  • security for the payment of the expert’s fees; and
  • the timing of implementation of the determination.