1. Preparing for Mediation – Counsel’s Perspective
Sharney Jenkinson

2. Choosing a Mediator What style of mediator does the client need?
What style of mediator does the other party (or their lawyer!) need?
Communicate this to your mediator

3. Choosing a Venue Convenience to parties Convenience to mediator
Convenience to Counsel

4. Choosing a Venue Formal vs Informal
Consider the need for neutral territory & facilities available
Consider the cost

5. Prepare the client Advice about the law to be applied
Advice to seek financial advice
Advice about realistic outcomes

6. Prepare the client Reality test proposals
Know the alternatives to a settlement (and their likely cost)
Know what you don’t know (and whether you need to postpone)

7. Prepare an outline Incredibly valuable resource
Helps to focus everyone’s mind on what the arguments are, and what they go towards
Include a proposal

8. Prepare an outline
Make sure client knows proposal is a starting position, not a “take it or leave it” offer
If other side’s outline differs, can some of the areas of dispute be narrowed in advance? How big is the dispute?
Provide outline to the other party and the mediator in advance

9. Discovery Be satisfied with discovery in advance of the mediation
Be aware of relevant issues that arise from discovery
Follow up on requests for further information

10. Preparing the brief How is the client likely to present on the day?
Who is briefed on the other side?
Who is the mediator / where is the mediation?

11. Preparing the brief
Draw attention to relevant matters in discoverable documents
Deliver the brief well in advance
Do everything possible to create an environment of confidence for the client

12. Preparing the brief
Ensure the super fund has been afforded procedural fairness!!

13. Ensure the super fund has been afforded procedural fairness!!
Let me say it again…
Ensure the super fund has been afforded procedural fairness!!

14. Preparing the client (again!)
Ensure they understand the basic mediation process
Ensure they understand that each party will probably have to make some compromises
Ensure they understand that negotiations are a fluid process

15. Heads of Agreement
Broadly speaking, settlement discussions are without prejudice
Family dispute resolution (with an FDRP) has specific requirements (section 10J)
However, if there is a ”concluded compromise agreement” it can be admissible

16. Phiga Pty Ltd v Roche [2011] FCA 240
Without prejudice privilege does not prevent a claim that a concluded compromise agreement had been reached, in circumstances where the party has been misled
If there has been a deception, the subject matter of the dispute has changed

17. Evidence Act section 131(2)
Lists exceptions where evidence of settlement negotiations can be admitted
Parties can consent to the document being admitted
The document itself can indicate it is not intended to be confidential

18. Some Cases
Heads of Agreement can been admitted in costs disputes (e.g. Goldstein & Goyle [2012] FamCAFC 149)
Heads of Agreement are not binding and do not displace the court’s duty to determine the matter according to the act (e.g. Baam & Baam [2011] FamCAFC 47

19. Heads of Agreement
If the document is admissible but not enforceable, consideration needs to be given to how the document advances the dispute
Have parties sign consent orders wherever possible.

20. Consent Orders
If the mediation has been properly prepared, the client has gotten their financial advice and the super fund has been given procedural fairness you will often be able to sign consent orders at the mediation
Many judges are now accepting consent orders via at the end of a mediation