Property settlements involving small pools are often among the hardest disputes
to mediate.
The "pool" is the term lawyers use to describe the net value
of the property arising from the relationship after deducting the
liabilities.
The mediator must of course recognise that even a very
modest pool is important to the parties.A problem that can arise is the
proportion that the legal costs of the parties bears to the total size of the
pool if the dispute is not resolved at mediation and has to go to
court.
Regardless of the small size of the pool, the emotional issues
between the parties can be just as intense and sometimes more so, with an
additional layer of anger arising from a party having to move on from a low
asset base.
If the matter has to proceed to court, then it must go
through the same steps and stages as a more complex dispute and consequently the
legal costs will still be significant, further depleting the already small
pool.
The difficulty for the mediator is that he or she may know that it
does not make sense for the matter to go to court, however unfortunately the
disputing parties may be driven by emotion rather than logic.Regardless of the
legal costs that may flow from proceeding to court, pride, emotional pain or
wanting to rectify a past wrong may come between a party and settlement, with
one or other or both parties refusing to compromise.This is not of course to
suggest that one party should compromise for the sake of it where the other
party is being totally unreasonable, however if the gap between them narrows to
the point where settlement is possible then potential costs should become an
issue.
The mediator can only point out the importance of trying to reach
a resolution to preserve as much as possible of the pool for the parties.The
mediator can feel additional pressure in these circumstances to help the parties
achieve a resolution in their own interest, and feel disappointment if not
successful.
Sometimes where parties are clearly acting emotionally rather
than logically, the answer may lie in referring them to counselling to deal with
their emotional issues before attending or returning to mediation and sense may
eventually prevail with a settlement being reached before significant costs
accrue.
Ultimately however it is the parties' dispute and if a resolution
is not achievable then court with consequent costs may unfortunately
result.
Mike Emerson
Friday, September 28, 2012
Thursday, September 20, 2012
Mediation a good option for veteran emergency services workers
In counselling emergency service workers I have found many of the veterans of
long careers feel caught in a time warp arising from massive changes in their
fields over the past fifteen to twenty years.
It is common for these workers to lament times gone by when their service was run at a neighbourhood level - from the raising of funds to the dispatching of crews. They often recall feeling more supported by management who had more realistic expectations than they feel exist today.
Whilst skill levels, response times and outcomes may have improved, members of these services often report that they used to feel closer to their communities, more valued and more fulfilled in their work "in the old days" than they do now. Standards and practices have moved forward but with these changes has come inevitable depersonalization and workers often feel like little cogs in a big impersonal wheel.
The workers often blame "management" and a common cry is, "They didn't support me when I needed it and now I am on my own". Mediation before the situation becomes so critical could be the answer for some of these workers.
For others, counselling will be more effective. I often encourage these workers to liken their career experience to a successful relationship that has been mutually rewarding for a long time, but may have run its course. I help them consider all available options and look at other ways they might be able to utilise their skills and experience - perhaps even outside emergency services.
Denise Britton
It is common for these workers to lament times gone by when their service was run at a neighbourhood level - from the raising of funds to the dispatching of crews. They often recall feeling more supported by management who had more realistic expectations than they feel exist today.
Whilst skill levels, response times and outcomes may have improved, members of these services often report that they used to feel closer to their communities, more valued and more fulfilled in their work "in the old days" than they do now. Standards and practices have moved forward but with these changes has come inevitable depersonalization and workers often feel like little cogs in a big impersonal wheel.
The workers often blame "management" and a common cry is, "They didn't support me when I needed it and now I am on my own". Mediation before the situation becomes so critical could be the answer for some of these workers.
For others, counselling will be more effective. I often encourage these workers to liken their career experience to a successful relationship that has been mutually rewarding for a long time, but may have run its course. I help them consider all available options and look at other ways they might be able to utilise their skills and experience - perhaps even outside emergency services.
Denise Britton
Tuesday, September 18, 2012
Testing the Sustainability of Your Marriage
http://well.blogs.nytimes.com/2010/12/31/the-sustainable-marriage-quiz/?ref=taraparkerpope
A study by Aron and Lewandowski in New Jersey has identified a process called
"self-expansion" as a key to marital success. The research found that the more
self expansion people can achieve with their partners, the more satisfying their
relationships. To measure this factor in marriage Dr Lewandowski has developed a
quiz which measures how much people's intimate relationships expand their
knowledge of themselves and make them feel positive about themselves. Go to the
article by Tara Parker-Pope in the New York Times to see the test for yourself.
Monday, September 17, 2012
Settlement out of Court
Last week, I attended a presentation on consent orders in the Family Court.The presentation was given to the Family Law Practitioners' association by Registrar Teresa Kane of the Family Court.
Where parties in dispute reach an agreement out of court, they can file consent orders in the court registry.This enables formal orders to be made by the court without the need for the parties to be present.Settlement in this manner involves substantial savings to the parties not only in terms of legal costs, but the stress and distress that inevitably accompanies contested proceedings in the court.
The filing of consent orders means that parties have been able to reach agreement out of court,or without the need for a fully contested hearing.It is not unusual for the costs of a fully contested hearing including the preparation for same to cost upwards of $40,000 or more and these costs are better spent by the parties elsewhere, including on their children.
For consent orders to be made in this manner it is only necessary for two forms to be lodged, those being an Application for Consent Orders and a formal minute or draft of the order sought.The Application requires information which the court requires to determine whether the proposed orders are appropriate and in the case of property orders, whether the settlement reached is "just and equitable".It is essential that all relevant information be provided and be accurate to prevent an application being made at a later stage to set the orders aside.
One of the interesting details noted by Registrar Kane in her very informative presentation was that Australia wide there were approximately 10,000 orders made by consent, in the above manner, by the Family Court over the past year and of that total number, the Brisbane Registry accounted for approximately one third.In other words there appears to be a higher settlement rate in the Brisbane registry than in other parts of the Commonwealth.
There could be any number of reasons why Brisbane and indeed Queensland has a higher strike rate in terms of settlement than other parts of Australia.
One possible reason is that Mediation has taken a much greater hold in the Sunshine state than other parts of Australia and this is undoubtedly contributing to the higher settlement rate.The role of the legal profession in Queensland and attitudes to settlement are also no doubt factors.
Regardless of the reasons, it is no doubt a worthwhile outcome and in the interests of parties to have such a high proportion of consensual settlements.It is to be hoped that the trend continues.
Where parties in dispute reach an agreement out of court, they can file consent orders in the court registry.This enables formal orders to be made by the court without the need for the parties to be present.Settlement in this manner involves substantial savings to the parties not only in terms of legal costs, but the stress and distress that inevitably accompanies contested proceedings in the court.
The filing of consent orders means that parties have been able to reach agreement out of court,or without the need for a fully contested hearing.It is not unusual for the costs of a fully contested hearing including the preparation for same to cost upwards of $40,000 or more and these costs are better spent by the parties elsewhere, including on their children.
For consent orders to be made in this manner it is only necessary for two forms to be lodged, those being an Application for Consent Orders and a formal minute or draft of the order sought.The Application requires information which the court requires to determine whether the proposed orders are appropriate and in the case of property orders, whether the settlement reached is "just and equitable".It is essential that all relevant information be provided and be accurate to prevent an application being made at a later stage to set the orders aside.
One of the interesting details noted by Registrar Kane in her very informative presentation was that Australia wide there were approximately 10,000 orders made by consent, in the above manner, by the Family Court over the past year and of that total number, the Brisbane Registry accounted for approximately one third.In other words there appears to be a higher settlement rate in the Brisbane registry than in other parts of the Commonwealth.
There could be any number of reasons why Brisbane and indeed Queensland has a higher strike rate in terms of settlement than other parts of Australia.
One possible reason is that Mediation has taken a much greater hold in the Sunshine state than other parts of Australia and this is undoubtedly contributing to the higher settlement rate.The role of the legal profession in Queensland and attitudes to settlement are also no doubt factors.
Regardless of the reasons, it is no doubt a worthwhile outcome and in the interests of parties to have such a high proportion of consensual settlements.It is to be hoped that the trend continues.
What is Mediation?
There is no single definition of mediation.A clssic definition is that of Folberg and Taylor(1984); "Mediation is a process in which the participants with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options,consider alternatives and aim to reach a consensual agreement that will accommodate their needs."
There are many different strands of mediation and an equally wide range of styles.As with settlement conferences, consideration can be given to involving neutral experts in the mediation.For instance, in the course of negotiations, the parties and/or their lawyers may propose that experts be engaged to undertake reports or appraisals as part of the solution to a dispute regarding children, or accountants or other experts to resolve factual issues or undertake valuations in property matters.
Mediation is a very flexible process and not only can the process be adapted, but the mediation can be undertaken at any time to accommodate the parties and this is one of the advantages of mediation.
Mediation and Court delays
One reason for using mediation is that unlike the court process, a mediation can be convened at any time to suit the parties.
Trials have become a very expensive process with courts under resourced and serious court delays resulting.These days it is not unusual for disputing parties to have to wait for a year or more to get a hearing.Particularly in the relationship area this is most unsatisfactory with parties having to put their lives on hold while they await a hearing.Sometimes it is necessary for properties to be revalued and other circumstances can change significantly.
Delays in getting a hearing are only part of the problem however as even after a final hearing parties often have to wait long periods for a decision.Courts do their best to avoid these delays, but they inevitably occur.As recently as last weekend there was a report in the Brisbane Courier Mail detailing delays in the Family Court and Federal Magistrates Court and the inpact they were having.
Mediation offers parties in dispute the opportunity to resolve their dispute without these delays.Mediation can be convened with little notice and scheduled quickly.Consequently because of the high success rate of mediation, parties often resolve their disputes without the delays associated with court proceedings.Apart from being organised quickly, there is no waiting for an outcome, as if parties are able to reach a resolution, then they usually leave with an agreement which can be formalised in a court order.
Parties can access a mediation through their lawyer or approach a mediation agency directly.Some mediation agencies have waiting lists, however private mediation services can usually schedule mediations at short notice and of course with these services lawyers are usually welcome to attend so the parties have ready access to their legal advice in the course of the mediation.At Brisbane Mediations, we have over 30 mediators on our panel so there are no delays in scheduling mediations and lawyers are always welcome.In fact we generally find that lawyers are very helpful in achieving an outcome at the mediation.
The ability to convene mediations at short notice is one of the distinct advantages of mediation.Furthermore mediation has the flexibility of not having to be convened within court hours and the saving to the parties both in terms of costs and emotional distress is enormous.
Trials have become a very expensive process with courts under resourced and serious court delays resulting.These days it is not unusual for disputing parties to have to wait for a year or more to get a hearing.Particularly in the relationship area this is most unsatisfactory with parties having to put their lives on hold while they await a hearing.Sometimes it is necessary for properties to be revalued and other circumstances can change significantly.
Delays in getting a hearing are only part of the problem however as even after a final hearing parties often have to wait long periods for a decision.Courts do their best to avoid these delays, but they inevitably occur.As recently as last weekend there was a report in the Brisbane Courier Mail detailing delays in the Family Court and Federal Magistrates Court and the inpact they were having.
Mediation offers parties in dispute the opportunity to resolve their dispute without these delays.Mediation can be convened with little notice and scheduled quickly.Consequently because of the high success rate of mediation, parties often resolve their disputes without the delays associated with court proceedings.Apart from being organised quickly, there is no waiting for an outcome, as if parties are able to reach a resolution, then they usually leave with an agreement which can be formalised in a court order.
Parties can access a mediation through their lawyer or approach a mediation agency directly.Some mediation agencies have waiting lists, however private mediation services can usually schedule mediations at short notice and of course with these services lawyers are usually welcome to attend so the parties have ready access to their legal advice in the course of the mediation.At Brisbane Mediations, we have over 30 mediators on our panel so there are no delays in scheduling mediations and lawyers are always welcome.In fact we generally find that lawyers are very helpful in achieving an outcome at the mediation.
The ability to convene mediations at short notice is one of the distinct advantages of mediation.Furthermore mediation has the flexibility of not having to be convened within court hours and the saving to the parties both in terms of costs and emotional distress is enormous.
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