Arbitration

Property issues in Family Law can now be resolved quickly by leading family lawyers acting as Arbitrators following changes to the Family Court rules from April 2016.

The Family Court supports the use of Arbitration to resolve property matters in a timely and cost effective way.

Arbitration is a process  ( other than a judicial process ) in which parties to a dispute present arguments and evidence to an Arbitrator , who makes a determination to resolve the dispute.

Parties can choose their own Arbitrator and cases can be scheduled at a time and place to suit the parties. A hearing can be convened quickly and a decision handed down soon after the hearing.

The process can be adapted to meet the needs of the case.

The award when made can be registered with the court and takes effect as if it were a court order.

Brisbane Mediations supports Arbitration as a further way of unclogging the courts and saving parties the cost, stress and delay of court proceedings.

Arbitration is likely to be particularly attractive as a quicker and less expensive option for resolving modest property pools and more straightforward cases.

Brisbane Mediations has qualified Arbitrators available on our panel and can also access other qualified and experienced Arbitrators if the parties so desire.

Parties should direct any enquiries regarding Arbitration to our able assistants who will be happy to help.

Expectations and Mediation

When you come to mediation, your chances of success are greater if you have realistic expectations about what you can achieve. 

Part of your lawyer’s responsibility is to prepare you by advising of any shortcomings in your case and any risks you face should you not reach agreement and end up in court. 

Part of this involves your lawyer being familiar with previous Court decisions in similar situations to yours and considering those decisions in the light of the facts of your case. 

As with life generally, your lawyer will serve you best if he or she under-promises and over-delivers rather than over-promising and under-delivering. 

Hopefully, when you get to mediation you will have a realistic idea of the range of offers that will be open to you to accept - providing of course that the other party is also properly prepared and puts forward realistic offers. 

 Your Mediator will help by emphasizing the uncertainty of court, the high costs that you will face if you pursue a court outcome and the delays you will face. The Mediator may also advise you of the possibility of an appeal by the other party if the court decision is considered unduly favourable to you. The Mediator is also likely to draw your attention to the stress of court, the damage to relationships and the lost opportunity associated with court proceedings.   After all, life is what happens while you are waiting for your trial. 

Why is all this stuff about reality and expectations so important? Quite simply, if your expectations are too high any lower offer of settlement is likely to be seen by you as a “loss” and you will be more likely to proceed to court.  Loss aversion is what I think the psychologists call it. 

 On the other hand, if you come to the mediation equipped with a good dose of reality, then providing the offers made are also realistic, you are more likely to see any proposed settlement as a “win” and take advantage of it. 

The bottom line is that there are few if any winners at court and if we can increase your chances of settling and you carry through, you will have done yourself a favour. 

Don’t risk court. It’s not worth it. Avoid the costs, stress, delays, wasted opportunities and damage to relationships that come with court proceedings.  

Contact us at Brisbane Mediations resolve@brisbanemedations.com.au or visit our website www.brisbanemediations.com.au for further details.  

Finders,Minders,Binders and Grinders

When de-cluttering in my study recently, I came across Nick Farr-Jones's story about asking his first boss:" What kind of law do you think I'd be good at?".

The answer was, "don't worry about the sort of law you should do, work out what sort of person you are. There are finders, minders, binders and grinders".

" I've never forgotten that" said Farr-Jones who classifies himself as a "finder" of new business and a " minder" of existing relationships, as opposed to a " grinder," who doesn't like going to client meetings but loves sitting behind a computer doing financial modelling, for example.

The message is clear, find out what role you like and are comfortable with and you are likely to be happier with your job and of greater value to the business.

One Barrister's Perspective on Settlement.

In recent days, while attending a function at the Family Court, I chatted with a barrister whom I knew well, about his work generally and the state of the list in the Brisbane Registry.

The barrister who enjoys a strong reputation in Family Law remarked that he hadn't done a trial in ages. " All of my matters seem to settle before trial, many of them at mediation ", he said.

When pressed further as to why this was so, the barrister volunteered that apart from the obvious issue of costs and parties not being able to afford to go to trial, it was the uncertainty of the outcome that was also a factor. Clients regularly ask me whether I can guarantee them a better outcome if they go to trial and inevitably the answer is " no I can't " he said.

The costs issue is self evident and this combined with the uncertainty of outcome, make up what lawyers and mediators refer to as the risk factor which in most cases is a strong deterrent to parties proceeding to trial.

Panellist--Pat Cavanagh

One of our panellists,Pat Cavanagh has been engaged by The University of Queensland to conduct seminars on Advanced Corporate and Commercial Negotiation and Mediation Strategies.

The courses are part of the Executive Education Program of the TC Beirne School of Law.

They are designed to expand the negotiation strategies and outcomes for commercial and corporate advisers.

Pat Cavanagh is one of Australia's Leading Commercial Negotiators and Mediators. He has facilitated the resolution of hundreds of commercial,property,tax,franchise,and partnership cases and has been instrumental in setting up and developing (ADR) organisations both in Australia and overseas.

We are pleased to offer Pat's services as a member of the Brisbane Mediation's  panel and are delighted that his competence and experience have been acknowledged in this manner by The University of Queensland.

Please direct any enquiries to Brisbane Mediations at resolve@brisbanemediations.com.au or to our website www.brisbanemediations.com.au.

Flexibility of Mediation

One of the many advantages of mediation is it's flexibility. In fact it can be convened anywhere and anytime and without the inevitable delays of the court process.

Earlier this week, we conducted a mediation where one of the parties attended by phone from Victoria. The same process applied with each party participating in a one hour confidential intake followed by a four hour mediation with capacity to extend.

The intake,whether by phone or in person,helps in establishing the necessary rapport and trust which are often the basis for a successful outcome.

It is not uncommon at Brisbane Mediations for one or both parties to attend by phone or Skype. While this is usually essential in International matters, it also helps reduce costs where a party is interstate or some distance from Brisbane.

In fact there is no reason why Queensland mediators can't offer the phone option to attract work from other capitals or outlying centres.

Our capable staff will be happy to respond to any enquiries at resolve@brisbanemediations.com.au. For further information see our website www.brisbanemediations.com.au

Landmark decision of Full Family Court in Fields & Smith

The much awaited decision of the Full Family Court in Fields & Smith [2015] FamCAFC 57 was handed down on 17 April 2015. https://jade.barnet.com.au/Jade.html#article=389655

In holding that there should be an equal distribution of the parties’ assets, the Court confirmed that there is no binding rule of “special contributions” and endorsed the view of the Full Court in Hoffman & Hoffman [2014] FamCAFC 92 where the Court said at paragraph 52:

“… we consider that the point being made is that there is no principle or guideline (or indeed anything else emerging from s 79), that renders the direct contribution of income or capital more important – or “special” – when compared against indirect contributions and, in particular, contributions to the home or the welfare of the family…”

At paragraph 187 of Fields & Smith the Court said:

187. In this case, the contributions of both parties over a lengthy period were substantial and significant. The wife’s contributions to the welfare of the family are in themselves significantcontributions and s 79 does not suggest that one kind of contribution should be treated as less important or valuable than another.

Commenting on the case, in the Australian of 20 April 2015, well- known family lawyer Paul Doolan noted inter alia that:

“In cases involving high-net-wealth parties who built up their assets together, the fact that one party produced the income during the relationship is not to be seen as more important than the role played by the other in making contributions to the family.”

Brisbane Mediations-Current Availability

Denise Britton and I, the principals of Brisbane Mediations are currently travelling in South America and will be away from Brisbane until late March.

Over the past week, we have attended the South West Medico Legal conference in Beunos Aires.

Buenos Aires is an interesting city and perhaps aspects are the subject of another blog. The city like the whole of Argentina is facing serious economic problems and the threat of the currency collapsing.

While we are away the office of Brisbane Mediations continues to be staffed by our able assistants, Joanne McDonald and Krystina Jones who are available to handle enquiries and accept bookings.

Joanne and Krystina can accept bookings for after our return to Brisbane or direct enquiries to experienced Mediators on our panel.

Whatever the type of dispute we have mediators to handle it.

Some of our more experienced mediators include Tom Stodulka, James White, Donna Cooper, Gary Shepherd, Sue Waterman, Fran Conway. Of course there are many others and Joanne and Krystina can recommend a mediator to suit your particular dispute.

Anyone wishing to email me directly can do so at either mike@emfl.com.au or resolve@brisbanemediations.com.au

I am happy to discuss my availability for dates in April, as of course is Denise.

We both value your enquiries and support for our business and will respond as soon as possible.

Please check our website, www.brisbanemediations.com.au

We look forward to assisting you to resolve your dispute without the cost and delay of litigation.

Mike Emerson

Trust pays Dividends in Mediation

As a lawyer practising in the family jurisdiction over many years, I have often explained to clients that "transparency means trust" when litigating. Failure to disclose or deliberate deceitfulness is likely to impact on the other party's ability or willingness to negotiate during settlement attempts.

Trust is also vitally important in mediation. As with litigation, transparency assists parties to negotiate and reach a resolution.

Parties to mediation must also trust the process and the mediator if resolution chances are to be optimised.

The mediation intake plays a most important role in developing trust - both in the process and the mediator.  It provides an opportunity for the mediator to explain his or her independence and neutrality and the mediator's role.

Most importantly, however, through careful listening, eye contact and a genuine interest in what parties say, mediators are able to establish rapport and develop trust. This rapport and trust Is an investment by the mediator which can produce big dividends in terms of results should the going gets tough later in the mediation.  

Clearly trust in it's many facets is important to mediation success.

A Spirit of Compromise in Mediation. Hindsight is a wonderful thing!

A spirit of compromise is essential in achieving an outcome in mediation.

Mediation has gained popularity because courts have failed to provide inexpensive and timely outcomes for disputing parties.

Mediation can be convened quickly, is less expensive (often vastly so), and enables parties to move on with their lives without undue delay.

Success at Mediation is greatly assisted by proper disclosure and transparent dealings.  A spirit of compromise - including willingness to listen to the other party's views and acknowledgment that court outcomes are discretionary and usually encompass a range of possible outcomes- improves prospects of resolution.

Some time ago we undertook a mediation intake for a party who chose not to proceed with the mediation but rather to embark on litigation, confident in his solicitor's advice that a particular favourable outcome would be achieved.

Later, on returning to mediation on a peripheral issue, the same party expressed considerable lament that he had not continued to mediate in the first instance. After he and the other party had each spent approximately $150,000, he had been told by the same solicitor 'at the door of the court' that, "Today is the day we compromise our position to try to achieve a settlement".

Whilst the solicitor was no doubt confident in his original advice, the client would have been better served by exploring a range of possible outcomes at mediation and compromising to achieve an outcome both parties could accept. They could then have moved on emotionally earlier and the money spent on litigation would have been available to fund the more wholesome needs of themselves and their children.

Hindsight is such a wonderful thing!

Tips to Enhance Mediation & Negotiation Skills

www.emfl.com.au/index2.php?p=reportDetail&reportID=54