Wednesday, November 21, 2012


Yesterday I had the very interesting and enlightening experience of sitting in on a mediation hearing held in the hope that the two parties could find a resolution to their dispute without having to go to court. The matter in contention was an estate of over $1 million. The absence of a clearly articulated will resulted in two people believing that they were entitled to the lion’s share of the estate. Both parties were prepared to go to court, if necessary, to argue their case before a judge. Mediation is mandatory in NSW under such circumstances so the two parties faced off in a room specifically designed for the purpose in hand. 

In his opening address, the only semi-formal part of the entire process, the Registrar, addressing all of the interested parties said, with a smile, “The best result to come out of the mediation this afternoon would be for both sides to come away from it feeling a little bit unhappy.” Everyone laughed, setting the tone for the afternoon.

At the outset neither side was prepared to settle for less than 80% - the lion’s share of the estate. After I had heard the legal arguments for both parties I formed the impression that it was well nigh impossible to say who was more deserving of the larger portion of the estate. If I were a judge I would probably just split it down the middle and give 50% to each party. I expressed this opinion to the side that I was providing moral support for but who was not prepared, at the outset, to settle for less than 70%. As it happened the other wide was not prepared to settle for less than 80%.

As the afternoon wore on it became apparent to all concerned that the expense of  having the matter heard in court would not only diminish the estate by about 10% (possibly more) but would quite possibly leave one party with nothing or next to nothing. There was a bit of chest-beating and bluffing on the part of a couple of barristers but within a couple of hours it was agreed that a 50/50 split was the best way to go. Everyone left the mediation process happy with the outcome - not even a little bit unhappy. Everyone won.

During the process there was not one raised voice and no accusations thrown - even though one side had lots of reasons to be very very angry with the other and to see this not just as a dispute over money but over who loved and cared for the deceased the most and so on. Cool heads prevailed and the matter was all over and done with in about three hours. Had the matter gone to court not only would it have cost in excess of $100,000 but in order for one side to prove its case it would have been necessary for one party to present dirt of one kind and another to the judge, along with documented evidence of malfeasance etc., in support of their superior claim. As it happened, because both sides ultimately saw that a neat and clean resolution was preferable it was never necessary to get into the details of the disputed claims. It was possible to focus only on what outcome both wanted. Not necessarily a fair outcome but one that both sides could live with. And this was achieved.

Even at this late date mediation could occur in this dispute between myself and Screen Australia. With the lessons I learned yesterday, it seems to me that the best way to achieve this would not be to examine in forensic detail who said or did what when and whether X threw the first punch or Y but to focus on the desired outcome and see if there is any way of wrapping up this dispute with a minimum of fuss and without the need for either side to be throwing any more punches. Here is one definition of the mediation process:

"Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters.
The term "mediation" broadly refers to any instance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable and dynamics that "ordinary" negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process.
Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement...." 

I think it is pretty clear what both parties of this dispute would wish for by way of resolving it. However, I can also see that such mediation needs to to taken out of the spotlight, out of the public glare, and be accomplished in a way that is ‘private and confidential.’ All that is required is for both parties to be willing to engage in a mediation process that has as its focus the desired outcome and not the reasons why the dispute arose. What is required is for someone to take on the mediation role, to set some ground rules and to allow the process to take place with all eyes firmly fixed on the desired outcome. I had hoped that the office of the Ombudsman might be able to fulfill this role but it cannot. There are, however, professionals who specialize in the kind of mediation that I believe is needed here. I am in the process of enquiring about the cost of such mediation and would be quite prepared to split the mediator’s fee 50/50 with Screen Australia.

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