The Mediation Alternative Mr Des Ryan AM

The Mediation Alternative What is Mediation? n voluntary ( but see below) n assisted resolution of dispute n by mediator- independent and neutral n seeks agreement - not determination n confidential n without prejudice

The Mediation Alternative Role of Mediator IS IS n impartial n independent n trained n experienced n facilitator/commentator NOT NOT n arbitrator n advocate n legal advisor

The Mediation Alternative When to Mediate n Before Litigation - voluntary, contractual (pre- condition) n During litigation n voluntary n court mandated - S53A Federal Court Act n close of pleadings/discovery/evidence

The Mediation Alternative A Structured Process n R7 - Fed.Ct Rules n but flexible n several models

The Mediation Alternative Pre - Mediation Discussion n Logistics - time, place, fees, confidentiality n Parties - authority, lawyers / no lawyers

The Mediation Alternative Mediation Agreement - see attached n Parties / mediator n Immunity / indemnity n Privilege n Costs / payment

The Mediation Alternative A Common Model - Caucus n Opening session n Mediator explains role n Parties statements’ n facts agreed/ in contention n statement of position n desired outcome

The Mediation Alternative A Common Model - Caucus n Joint Session n Party Interaction n Mediator n focus discussion - interests v. rights n identify - points of conflict / points of agreement n summarise

The Mediation Alternative A Common Model - Caucus n Caucus ( Private Session ) - each party n draw out interest - any hidden agenda n other party’s perspective n reality testing n consequences - time, cost n alternatives

The Mediation Alternative A Common Model - Caucus n Further Joint Sessions n Further Private Sessions n Shuttle Diplomacy

The Mediation Alternative ResolutionResolution n Resolution n Settlement Agreement n Binding n No Resolution n Back to court n Without prejudice

The Mediation Alternative An Example - Steel Rockbolts n SmallCo patentee, strong rights, weak financial, small volume steel user - West Coast patentee, strong rights, weak financial, small volume steel user - West Coast n BigCo infringer, doubtful defence, strong resources, large volume steel user - East Cost infringer, doubtful defence, strong resources, large volume steel user - East Cost

The Mediation Alternative Agree Mediation n Mediator - steel industry background n Known and respected n Identified opportunities - mutual benefits

The Mediation Alternative OutcomeOutcome n BigCo n cease manufacture n purchase from SmallCo for East Coast n supply steel to SmallCo n compensate for past infringement by discount steel price over 2 years

The Mediation Alternative OutcomeOutcome n SmallCo n supply product to BigCo n Option to purchase SmallCo business if SmallCo wishes to sell