handshkeiconMediation Protocols

  • All enquiries regarding availability should be directed to Anthony (losurdo@12thfloor.com.au; 612 9223 3181) or to his clerk, (clerk@12thfloor.com.au; 612 9232 4016).
  • 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 or on-line (as to which, see below).

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.

ON-LINE MEDIATION PROTOCOLS

Introduction

Due to its remote nature, on-line mediation requires bespoke preparatory measures not encountered in a traditional face to face mediation. The following protocols will ease the process and ensure that on-line mediation is and remains a viable option for the resolution of disputes.

Preliminary Steps

The parties should act co-operatively to agree:

(a)          the choice of a mediator, which will necessarily require a consideration of the style of mediation that will best suit the nature of the dispute;

(b)         a range of dates that suit the parties, their legal representatives and any other interested parties; and

(c)          the on-line platform that the parties propose as the medium through which the mediation will be conducted, eg, Zoom, Cisco Webex and Skype. It is important that any platform that is used is suitable for the number of participants, contains a split-screen, the ability to create virtual break-out rooms and to move from room to room, and a function to mute video and microphones).

The mediator would ordinarily “host” the mediation and thus assume responsibility for issuing on-line invitations to participants and for controlling the participants on-line during the course of the mediation. Also, that way, and just like in a face to face mediation, the mediator is free to move between rooms.

Contact the Mediator

One of the other parties contacts the Mediator, preferably by email, copying in the other parties with a view to agreeing:

(a)         a date(s) and time for the mediation;

(b)         the on-line platform proposed for the conduct of the mediation; and

(c)           if documents are to be provided electronically, the electronic or “file-sharing” means (eg Dropbox, Files2U, File Dropper) by which it will be made available to the parties and to the mediator.

That email should also set out the names of the parties to the dispute and contact details (ie, email, land-lines and mobile phone numbers) of each of the parties and their respective legal representatives.

The Mediator’s Initial Contact with the Parties

Once a date, time and on-line platform for the mediation has been agreed, the mediator should write a confirmatory email to the parties or to their legal representatives.

The confirmatory email will also:

(a)         attach a draft form of on-line mediation agreement for the parties to complete together with requisite confidentiality undertakings;

(b)         a proposed set of directions to facilitate the expeditious preparation of the dispute for mediation; and

(c)          a request that the parties or their legal representatives, if any, engage in a preliminary conference by either telephone or video-conference to discuss the mediation agreement, the on-line platform to be used, the proposed directions or any other matters relevant to the preparation of the dispute for mediation.

The Mediation Agreement

In an effort to preserve the integrity and, in particular, the confidentiality of the process, it will be necessary for the parties with the assistance of their legal representatives, if any, to identify early and to notify all other parties of the persons who are to attend the mediation. Those persons are to be identified in and sign the confidentiality undertaking contained within the mediation agreement.

The completed and signed mediation agreement is to be provided to the mediator no less than 48 hours prior to the commencement of the mediation at which time the mediator will sign it also and distribute a copy by email to the parties.

Preliminary Conference

A preliminary conference should be held by telephone or by video.

Prior to the preliminary conference, the mediator will have distributed proposed directions designed to ensure that the parties and the mediator are fully informed of the facts, matters and circumstances that have given rise to and the real issues in dispute. They will include directions concerning:

(a)          the preparation of an agreed mediation book of documents and, if documents are to be provided electronically, the electronic or “file-sharing” means by which it will be made available to the parties and to the mediator. For ease or reference, the mediation book should contain an index and be paginated and preferably tabulated; and

(b)         the preparation and exchange of a mediation summaries of parties’ interests together with, where appropriate, a comprehensive schedule of loss and damages.

Consideration should also be given to the preparation and circulation of a draft form of settlement agreement prior to the mediation.

It is envisaged that these directions will be complied with well ahead of the mediation to enable the parties an opportunity to consider them and to take appropriate instructions.

Pre-Mediation Conference

A short pre-mediation conference should be held no later than 24 hours’ prior to the mediation via the relevant on-line platform to discuss any issues pertinent to the mediation, to ensure that the mediation agreement has been signed, the system is working well and that all parties and the mediator are comfortable with the chosen platform.

At that time, the mediator may also provide an updated estimate of fees so that the parties may make appropriate arrangements to secure their client’s share.

The Mediation Day

The parties should log-in promptly at the designated time.

The parties and their legal representatives should:

(a)         ensure that they have closed all applications on their desktop that could interfere with the mediation, for example, email notifications and the like; and

(b)         mute their microphone when not speaking.

These steps will not only maintain privacy and confidentiality but is likely to enhance audio and visual quality.

The mediator will usually open the mediation will brief words of welcome, ensure that each party has audio-visual access and seek an undertaking from each party or their legal representatives, if any, that only the parties who have signed the mediation agreement and provided an undertaking as to confidentiality are in attendance.

This may be followed by an induction type introduction by the mediator in which the process is explained to the parties. The parties will then be free to open if they wish.

Depending upon the platform used and the desire of the parties, private sessions may be conducted either “on-line” in individual rooms or “off-line” by telephone, email, using any “chat” function on the platform or other secure means of communication with parties logging back in as and when necessary. It is critically important that prior arrangements be made with the mediator before a party goes off-line.

As with a face to face mediation, it is highly desirable that any settlement be recorded in a binding fashion on the day.

Anthony Lo Surdo SC

© 2020

Arbitration Protocols

  • All enquiries regarding availability should be directed to Anthony (losurdo@12thfloor.com.au; 612 9223 3181) or to his clerk, (clerk@12thfloor.com.au; 612 9232 4016).
  • 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) or to his clerk, (clerk@12thfloor.com.au; 612 9232 4016).

  • 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.