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The Mediation Alternative
The Mediation AlternativeThe Mediation AlternativeThe Mediation AlternativeThe Mediation Alternative
Mr Des Ryan AMMr Des Ryan AM
The Mediation Alternative
What is Mediation?What is Mediation?What is Mediation?What is Mediation?
voluntary ( but see below)voluntary ( but see below) assisted resolution of disputeassisted resolution of dispute by mediator- independent and neutralby mediator- independent and neutral seeks agreement - not determinationseeks agreement - not determination confidentialconfidential without prejudicewithout prejudice
The Mediation Alternative
Role of MediatorRole of MediatorRole of MediatorRole of Mediator
ISIS impartialimpartial independentindependent trainedtrained experiencedexperienced facilitator/commentatorfacilitator/commentator
NOTNOT arbitratorarbitrator advocateadvocate legal advisorlegal advisor
The Mediation Alternative
When to MediateWhen to MediateWhen to MediateWhen to Mediate
Before Litigation - voluntary, contractual (pre- Before Litigation - voluntary, contractual (pre- condition)condition)
During litigationDuring litigation voluntaryvoluntary court mandated - S53A Federal Court Actcourt mandated - S53A Federal Court Act close of pleadings/discovery/evidenceclose of pleadings/discovery/evidence
The Mediation Alternative
A Structured Process A Structured Process A Structured Process A Structured Process
072 - R7 - Fed.Ct Rules072 - R7 - Fed.Ct Rules but flexiblebut flexible several modelsseveral models
The Mediation Alternative
Pre - Mediation DiscussionPre - Mediation DiscussionPre - Mediation DiscussionPre - Mediation Discussion
Logistics - time, place, fees, confidentialityLogistics - time, place, fees, confidentiality
Parties - authority, lawyers / no lawyersParties - authority, lawyers / no lawyers
The Mediation Alternative
Mediation Agreement - see attachedMediation Agreement - see attachedMediation Agreement - see attachedMediation Agreement - see attached
Parties / mediatorParties / mediator Immunity / indemnityImmunity / indemnity PrivilegePrivilege Costs / paymentCosts / payment
The Mediation Alternative
A Common Model - CaucusA Common Model - CaucusA Common Model - CaucusA Common Model - Caucus
Opening sessionOpening session Mediator explains roleMediator explains role Parties statements’Parties statements’
facts agreed/ in contentionfacts agreed/ in contention statement of positionstatement of position desired outcomedesired outcome
The Mediation Alternative
A Common Model - CaucusA Common Model - CaucusA Common Model - CaucusA Common Model - Caucus
Joint SessionJoint Session Party InteractionParty Interaction MediatorMediator
focus discussion - interests v. rightsfocus discussion - interests v. rights identify - points of conflict / points of agreementidentify - points of conflict / points of agreement summarisesummarise
The Mediation Alternative
A Common Model - CaucusA Common Model - CaucusA Common Model - CaucusA Common Model - Caucus
Caucus ( Private Session ) - each partyCaucus ( Private Session ) - each party draw out interest - any hidden agendadraw out interest - any hidden agenda other party’s perspectiveother party’s perspective reality testingreality testing consequences - time, costconsequences - time, cost alternativesalternatives
The Mediation Alternative
A Common Model - CaucusA Common Model - CaucusA Common Model - CaucusA Common Model - Caucus
Further Joint SessionsFurther Joint Sessions Further Private SessionsFurther Private Sessions
Shuttle DiplomacyShuttle Diplomacy
The Mediation Alternative
ResolutionResolutionResolutionResolution
ResolutionResolution Settlement AgreementSettlement Agreement BindingBinding
No ResolutionNo Resolution Back to courtBack to court Without prejudiceWithout prejudice
The Mediation Alternative
An Example - Steel RockboltsAn Example - Steel RockboltsAn Example - Steel RockboltsAn Example - Steel Rockbolts
SmallCoSmallCo patentee, strong rights, weak financial, patentee, strong rights, weak financial,
small volume steel user - West Coast small volume steel user - West Coast
BigCoBigCo infringer, doubtful defence, strong resources, infringer, doubtful defence, strong resources,
large volume steel user - East Costlarge volume steel user - East Cost
The Mediation Alternative
Agree MediationAgree MediationAgree MediationAgree Mediation
Mediator - steel industry backgroundMediator - steel industry background Known and respectedKnown and respected Identified opportunities - mutual benefitsIdentified opportunities - mutual benefits
The Mediation Alternative
OutcomeOutcomeOutcomeOutcome
BigCoBigCo cease manufacturecease manufacture purchase from SmallCo for East Coastpurchase from SmallCo for East Coast supply steel to SmallCosupply steel to SmallCo compensate for past infringement by discount compensate for past infringement by discount
steel price over 2 yearssteel price over 2 years
The Mediation Alternative
OutcomeOutcomeOutcomeOutcome
SmallCoSmallCo supply product to BigCosupply product to BigCo Option to purchase SmallCo business if SmallCo Option to purchase SmallCo business if SmallCo
wishes to sellwishes to sell
