Limited Issues Illegal activity Moderate to low hostility Power Imbalance likely to be reflected in resolution Ongoing relationship desired Desire for settlement External pressure Leverage Mediation can be: catalyst for settlement fishing expedition Protection? Parties must act reasonably & genuinely - r325 Keep in mind philosophies - r 5 and Mediator’s lawyer’s role role role Mediator’s Lawyer’s Control process Explain process Enhance communication Advise on strategy Facilitate problem solving Encourage client to participate genuinely Reality test Watchdog on disclosure Watchdog over performance mediator’s Case Appraisal (CA) A process under the rules under which a case appraiser provisionally decides a dispute (s 92(1) DC of Qld Act 1967 (Qld)) CA is evaluative (cf mediation) ie, who is likely to win on the law/evidence – Parties present to evaluator, not each other Appraiser can only give decision that could be given by a court (r 335) Reasons for CA Need for early realistic analysis of the case Encourage parties at outset to confront and analyse own situation Allow litigants and lawyers to hear the other side Isolate centre of dispute, identify non-contested issues CA under the UCPR: 2 ways Consent order Referral by court: on application by one party where a matter is otherwise before the court Where referred, opportunity to object (r 319) Mediation vs CA If legal issue refer to case appraisal If factual issue refer to mediation Witcombe v Jordin: two areas in contention. The first was whether the first defendant (the niece) had any physical control of the house (as a matter of law) at the relevant time; the second was
Limited Issues Moderate to low hostility Ongoing relationship desired Desire for settlement External pressure Leverage Mediation can be: catalyst for settlement fishing expedition Protection? Parties must act reasonably & genuinely - r325 Keep in mind philosophies - r 5 Illegal activity Power Imbalance likely to be reflected in resolution Mediator’s and lawyer’s role Mediator’s role Lawyer’s role Control process Enhance communication Facilitate problem solving Reality test Explain process Advise on strategy Encourage client to participate genuinely Watchdog on disclosure Watchdog over mediator’s performance Case Appraisal (CA) A process under the rules under which a case appraiser provisionally decides a dispute (s 92(1) DC of Qld Act 1967 (Qld)) CA is evaluative (cf mediation) – ie, who is likely to win on the law/evidence Parties present to evaluator, not each other Appraiser can only give decision that could be given by a court (r 335) Reasons for CA Need for early realistic analysis of the case Encourage parties at outset to confront and analyse own situation Allow litigants and lawyers to hear the other side Isolate centre of dispute, identify non-contested issues CA under the UCPR: 2 ways Consent order Referral by court: on application by one party where a matter is otherwise before the court Where referred, opportunity to object (r 319) Mediation vs CA If legal issue refer to case appraisal If factual issue refer to mediation Witcombe v Jordin: two areas in contention. The first was whether the first defendant (the niece) had any physical control of the house (as a matter of law) at the relevant time; the second was