Over all the years I have been handling mediations the “ success rate “ has been very high. In almost all such cases one feels satisfaction , but occasionally there is a sense of unease. This may occur particularly in cases in which there has been a great imbalance of power between the parties .
The situation is usually assisted if each party is represented, although, even then, the representatives for one party may be far more impressive than their opponents . There is a limit to what the mediator can or should do in such circumstances , but in various ways I try to eliminate gross imbalance . I don’t favour great pressure being brought to bear in order to “ force” a resolution. If parties want a short break for example to ring someone, this is encouraged .
I wish to also comment on the use of the expression “ failed mediations “. There are odd cases in which the expression is appropriate , but often it is not. If, for example parties have entirely different advice as to the legal merits of their cases , the exposure of the strengths or weaknesses of a case may lead to a settlement of the matter shortly after the mediation..Rarely will the parties emerge from a mediation without a better understanding of what will be necessary to bring a dispute to an end .
In recent years the practice of lawyers “ grandstanding” particularly in the opening of a matter , has largely disappeared. Such a practice may lead inevitably to an unfortunate result. It was largely the pandemic which changed the situation ; an over enthusiastic opening somehow had less effect if we were working online !
And finally, I do my best to ensure that there are no surprises at the mediation . As an example, production for the first time of a document which appears to seriously impact an opponent’s case, tends to lead to a request for an adjournment rather than a settlement. So I ask that all documents upon which a party relies, are e hanged before we meet.
Working in the Country
In recent years a number of my more interesting engagements have been in country towns including Warragul, Traralgon, Morwell, Bendigo and Mildura.
Whereas some would find it irksome to travel to such locations, in my case it is quite the opposite . I love travel in the country . From 1996 my wife Meg and I owned a farm at Thornton, on the Goulburn, upon which we built a nice house. We commenced by running heifers but ended up operating a successful Angus stud. We attended sales in various parts of NSW and Victoria and found different farming operations to be the subject of endless discussion.
We also mixed extensively in our local areas, Yea, Eildon, Alexandra , Euroa and ultimately knew many neighbours, agents, business people etc. For ten years I contributed the wine column to a lovely magazine, North by North East. This burdensome role involved still more travel to vineyards or even pubs.
The upshot is that although our involvement in the country ended a few years ago — the Stud became very hard work— we retain a keen interest in matters rural. And I have been fortunate in being engaged in a number of mediations involving rural issues. Some very large farm debt matters ( all of which settled) or disputes between farmers or farmers and their agents . And of course the inevitable but unfortunate disputes within families as succession issues have to be resolved. My experience in farming has been invaluable, enabling me to suggest options which may not have occurred to the parties. One is dealing usually with “ salt of the earth” people.
So, mediating in the bush has been a pleasant part of my practice