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PARTIES' ATTENDANCE IN MEDIATION HEARINGS - 12/05/2012

It is crucial to the success of any mediation that compliance be enforced with the requirement of attendance of the parties in person and an officer from corporate parties with full authority to settle.

In Court Ordered Mediations (by Consent Order or otherwise) Part 20 Rule 6 Uniform Civil Procedure Rules 2005 is unbelievably frequently overlooked as the instrument by which proper attendance in person can be ensured. In addition to this fact too many mediations open with the absence of a properly authorised party in person being a fait accompli. A plaintiffs representatives in the face of this development have the choice of either meek submission to the fact of a claims manager or underling in some distant corporate bunker "available on the phone at any time ", or they, the plaintiffs representatives can dig their heels in, ensuring a nasty brawl and a poisonous determination on the part of the inconvenienced claims office!" to ensure "these bastards can get their money from the Court".

It is instructive to re-visit the ipsissima verba of Rule 6;
"UNIFORM CIVIL PROCEDURE RULES 2005 - REG 20.6
Mediation session procedure
20.6 Mediation session procedure (cj SCR Part 72C, rule 6)

(1) The following provisions apply to the conduct of a mediation session unless the mediator, or the court, otherwise directs:
    (a) the session must be attended:
        (i) subject to subparagraph (ii), by each party or, if a party is a corporation, by an officer of the corporation having authority to settle the proceedings, or
        (ii) if the conduct of the proceedings by a party is controlled by an insurer. by an officer of the insurer having authority to settle the proceedings,
        (b) a party may be accompanied by that party's barrister or solicitor at the session.
(2) A person who is required by sub rule (1) (a) to attend a mediation session
may do so by telephone, video link or other form of communication, but only with the leave of the court or the mediator.
 
The wording of Rule 6(1 )(a) is imperative " ... must be attended".

Further, the wording "having authority to settle the proceedings ... " is not qualified and R6(1)(a)(ii) specifically refers to " ... an officer (singular, note) of the insurer having authority to settle the proceedings ... ".

The wording is not, for example, "having access during the mediation to any such officer whose ultimate authority is required to settle ".

There is of course the traditional "out" in Rule 6(2) which permits any person covered in R6(1) to H ••• attend a mediation session ... by telephone, video link or other form of communication, but only with the leave 00118 Court or the Mediator".

When acting as a Mediator I adopt a rigid procedure of notifying the parties in writing upon appointment as Mediator that the parties are required to notify the Mediator in writing (email) before close of business on the day preceding the mediation of the names and status of those attending the mediation.

If a party wishes to avoid his/her/its obligations under R6( 1) then I feel the appropriate course is for the Mediator to contact the opposing part y(s) , remind them of Rule 6 and the importance of attendance in compliance with it, and, to ascertain their attitude - this avoids the pressure on a party to agree in a collegiate manner to meet the perceived convenience of the party's opponent, as can readily happen without considered thought on receiving a phone call from the other side.

Even in cases where the parties' representatives are old colleagues and, for example, the Claims Manager is well known to both representatives, it is surely a courtesy to the parties who do attend in person that, absent some real and compelling reason to the contrary, personal attendance by someone who counts, is just that, a mutual courtesy that ought always be extended.

It goes without saying that the likelihood of a settlement must be enhanced by personal participation in a mediation where each party has a full opportunity of evaluating the case that the other side has to argue - the case that has to be met by the opponent.

Again, if a Claims Manager is genuinely under such pressure that full attendance in person is a genuine burden then there will nonetheless be very few cases where an appearance at the opening of the mediation and for a decent interval thereafter may well suffice if that attendee remains genuinely available and contactable and displays the courtesy of seeking agreement from the opponent party(s) and the Mediator before withdrawing in person.

I have personally been involved in only one instance where the parties ended up after the aborted commencement of the mediation in front of the District Court List Judge on the day of the mediation seeking an order under Part 20 Rule 6. The Judge was totally ineffectual, the mediation proceeded without anyone having authority being present in person for the defendant's insurer (let alone the defendant doctor in person) and in an atmosphere of unbridled hostility and plunging prospects of resolution. Moral of the Solicitor? Obviously this SOli of disaster has to be headed off at the pass by a Mediator taking the above steps to ensure compliance.
 
There is also the practice, and I feel a good practice, of contacting the opponent practitioner when one is about to forward a Position Paper, advising one's colleague of the imminent dispatch of the Paper and using the occasion to enquire who will be attending; tell him/her who will be attending on one's client's behalf and just mentioning the Mediator's requirement to advise him/her as to the identity of the person in the case of a corporation/insurer who will be attending.

As mediation has increasingly become the norm in the common law jurisdiction so too has increased the danger of the process becoming a "rolling over a/the arm ", The requirement for exchange of Position Papers and the observance of Part 20 Rule 6 are obvious strategies to counteract this natural but insidious and counterproductive development.

 
There is one other function I venture to suggest we ought and are entitled to look for in our Mediators. Some Mediators regrettably in my respectful view, do not even attempt to perform this function but those who do, and do it well contribute powerfully towards successful resolutions.

I refer to the ability of a Mediator at the outset of proceedings to inculcate in the parties and their representatives a determination to be genuinely professionally committed to work individually and together against the common enemy, the continued existence of the litigation.

I have seen this done absent any mawkish touchy-feely exhortations to the parties, where the commonsense persuasiveness of the Mediator and an appeal to the parties to demonstrate they have the professionalism, skill and integrity to achieve a viable result of their own making, helps to produce just that attitude and just that result.

It goes without saying that hawk-eyed scrutiny - indeed scepticism are the enemies of the Mediator embarked upon this course, and she/he will certainly fail should those present be less than persuaded of the commonsense and sincerity of what the Mediator is, put simply, "selling".
The objective must be the genuine acceptance by those present of the reality that the enemy is a common one, and it is the litigation itself not the opponent, not the opponent's case and not the opponent's representatives, that is the real enemy.

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PARTIES' ATTENDANCE IN MEDIATION HEARINGS

It is crucial to the success of any mediation that compliance be enforced with the requirement of attendance of the parties in person and an officer from corporate parties with full authority to settle.


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Michael B Williams SC - Mediator
William Dean Chambers
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SYDNEY NSW 2000

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FAX 02 9235 1492

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Michael B Williams SC - Mediator
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Level 22 88 Shortland Street,
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Michael B Williams, SC - Mediator

Email - williams@williamdeanechambers.com.au

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