2. “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).
4. “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.”
5. 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
6. “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).
7. Preparing for mediation
Law Council of Australia
Guidelines 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.”
8. 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]
9. 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
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
each side’s best and worst result if no agreement is reached.
Encourages the development of practical and realistic alternatives.
Preparing for mediation
11. 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.
12. Preparing for mediation
Develop a relationship with the mediator before the mediation if you can
District Court of Western Australia
Circular 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 Australia
Consolidated 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.
13. Preparing for mediation
Ensure the right people attend
District Court of Western Australia
Circular 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 Australia
Consolidated 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
14. 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.
