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.  

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.