Services

Legal advice and representation

This is available having regard to the following areas of practice:

  • Medical Negligence & Health Law
    • litigation representing both plaintiffs and defendants (eg insurers, private & public hospitals, individual doctors and allied healthcare providers, MDO’s, etc)
    • disciplinary complaints (HCCC and AHPRA)
    • coronial inquests
    • regulatory matters eg Cwth Professional Services Review re Medicare billing practices
    • NSW and AHPRA regulatory advice and practice of registered healthcare providers
  • Professional Indemnity
  • Personal Injury
  • Public Liability
  • Government Liability
  • Insurance & Commercial Litigation
  • Coronial Law & Practice
  • Administrative Law
  • Employment / Industrial Relations


I believe that having acted for both plaintiffs and defendants provides a unique insight in to numerous aspects of dispute resolution, complaints handling, risk management, dispute resolution and litigation, including the ability:

  • to understand and explain to clients, the psychology involved on “either side”,
  • to explain and navigate a client through the best way to manage a dispute and resolve it if possible,
  • to anticipate, utilize and/or counteract various “plaintiff” and “defendant” litigation strategies.

I have also benefited from a large exposure to different clients in the health and wider insurance industry and have established some valuable client relationships.

At the same time, should a client’s instructions concern a legal issue or jurisdiction where I feel they would be better served by alternate legal representation, I will arrange for a suitable referral.

Please contact me to discuss the scope of potential instructions and the proposed terms of retainer.

Mediation of litigated and informal matters

I am a nationally accredited mediator (NMAS) with a strong belief that resolving disputes as opposed to litigating them, results in a much more favourable outcome for both parties. This belief is consistent with the approach I have taken throughout my career.

I believe that early, effective mediation should be available and affordable to all.

Informal settlement conferences are often unsuccessful because the mere exchange of offers and arguments is not sufficient to resolve the dispute. A mediator’s role in re-framing and de-toxifying the adversarial nature of the dispute during the course of negotiations is what makes the crucial difference in the parties being able to reach a settlement.

In relation to litigated matters, mediation is usually an invaluable process even if the claim does not settle on the day as it narrows the issues in dispute and the matter often ends up being resolved shortly after.

In response to these issues, I offer a flexible and cost effective mediation service that offers to the parties:

  • an all-inclusive mediation service priced from $3,000 to $3,500 + GST for a 1 day mediation depending on the complexity of the matter, (and includes preparation time, any pre-mediation meetings and travel within 50km from Sydney CBD);
  • a mediator willing to travel to suburban and regional areas to conduct the mediation.

I am a strong and committed believer in the effectiveness of mediation. Mediation and other forms of ADR provide the parties with maximum autonomy in determining the outcome of their dispute, as well as the opportunity to minimise adverse factors associated with any dispute: time, effort, stress and financial cost.

Having acted for both plaintiffs and defendants, I have acquired unique insight to numerous aspects of the dispute resolution process, crucial to which is an understanding of the psychological aspects involved in successful negotiation. This understanding allows me to provide constructive, sensitive and effective guidance of the parties throughout the mediation process.

To witness the “shift” between the parties towards a mutual understanding and intent to map out a practical way ahead, when at the start of the mediation they were diametrically opposed: is to appreciate the true utility of mediation.

From the commencement of my legal career in the mid 1990’s, I was fortunate enough to participate in a great number of mediations conducted by the great Sir Laurence Street, where I learned how powerful a tool it can be. The provision of a supportive environment that facilitates the “victims” to a dispute to feel heard and validated, in turn allows for a robust reality testing of the various options for dispute resolution, so that both parties are able to reach an agreement that they can live with. The claimant can move on with their life and the respondent can close the books.

Mediation is a voluntary process that facilitates the parties to work together in an attempt to reach an agreement. Mediated agreements are more likely to be practical and robust, because the parties themselves have determined the outcome.

Mediation begins with the parties to a dispute agreeing to mediate, setting ground rules and selecting a mediator. The mediation then involves parties trying to understand what is important to each side, clarifying what is negotiable, exchanging information and identifying and exploring possible solutions. At the end of a successful mediation, parties will put their solutions and agreement down on paper.

  • To be truly independent: the mediator must have no stake in the outcome of the dispute and no conflict of interests in conducting the mediation
  • To help the parties identify the issues
  • To help the parties understand each other’s interests and position better
  • To encourage the parties to look at options around how they might resolve the dispute and hopefully, to reach an agreement

It is NOT the role of a Mediator to provide legal or other advice to the parties about the dispute, to determine any facts in dispute, to make any judgements about the respective merits of the dispute, nor to suggest ways in which the parties might resolve the dispute.

  • To remain in control of the dispute and its outcome, (as opposed to a Court-imposed judgement)
  • To discuss and negotiate all aspects of the dispute on a confidential basis that will not adversely effect the parties’ interests if the dispute is not resolved at mediation and is required to proceed through formal channels
  • To settle their dispute cost effectively

In recent years, because Mediation is so effective, various mechanisms (such as the Courts, dispute resolution clauses in contracts) require compulsory participation in a Mediation before progression to more formal, time-consuming and expensive means of dispute resolution. Once initiated, the process in every way is voluntary through to the end of the Mediation however the parties should always participate in good faith.


Mediation is a structured approach to dispute resolution.
The model endorsed by the Australian, New Zealand and Asia Pacific region accreditation body Resolution Institute, is an interest-based negotiation model essentially involving 3 phases, as follows:


    • Permission of both parties to mediate
– Making sure that both parties are willing to make process work.
– Selecting the mediator
– Agreeing the ground rules
– Agreeing who will attend
– Both parties agreeing to mediation agreement
– Initial discussions with the mediator in a pre-mediation conference (unless agreed to be unnecessary)

      Mediator explains the rules and process
– Mediator invites the parties to introduce themselves and explain briefly their position and what they would like to achieve through the mediation- Mediator summarises and reflects on the parties’ introductory issues and then – Identifies & Suggests the key issues for exploration.

    • Opening up the channels of communication between the parties –Balanced interaction facilitated by the Mediator – Uncovering interests – Exchanging information – Discussion and Understanding of what is important to each side
– Developing an understanding between the parties of each other’s perceptions of the dispute and their respective strengths and weaknesses.
– Building trust between parties and the mediator. Mediator facilitates constructive communication on all agenda items, and focus on the present and future – shifting from focus on the past.
      Confidential private sessions with the Mediator – further discussion of what is important (facts, interests, feelings, outcomes) – Exploring / Clarifying what is negotiable.
– Identifying options and possible solutions that the parties may be prepared to discuss on resumption of the joint session.

    • Exploration of possible options and solutions.
– Testing what is important.
– Dividing the issues into their material parts
– Overcoming any deadlock – Emergence of a negotiated resolution of the dispute.

      Agreeing on a solution.
– Putting the solution and agreement down on paper
– Making sure that all parties are satisfied.
– Ensure that all points are covered.
– Finding a solution to any future relationship between parties if necessary.

Depending on the nature of the dispute, joint sessions may be minimized and parties communicate through the Mediator and the parties’ legal advisers, if applicable.

:
This will vary in accordance with the respective party’s wishes. However the role of legal advisers is essentially:

      • To advise and assist their clients in the course of the Mediation;
      • To discuss with the mediator, with each other and with their respective clients, such legal, procedural or practical matters as the Mediator might suggest, or as their clients might wish; and
      • To prepare the terms of settlement or heads of agreement recording the agreement reached at the end of the Mediation for signature by the parties prior to departure.

Remember the whole process is entirely voluntary (unless imposed by the Court), confidential (as far as the law allows) and without prejudice. There is an expectation that the parties come to Mediation with a view to negotiating in good faith towards achieving a settlement of the dispute.

      • All discussions during the Mediation in joint session;
      • All discussions during the Mediation in the respective private sessions with the Mediator;
      • All documents created for the purpose of the Mediation.

There are some exceptions to the confidentiality rule, (eg if the Mediator is required to confirm the parties’ participation to the Court in a Court-ordered mediation; if a criminal act is disclosed by one of the parties during the course of the mediation).

      • Explain the process clearly
      • Be neutral and balanced at all times
      • Be sensitive and cognisant of the parties who are often under a great deal of stress and are apprehensive about the dispute and the Mediation process itself
      • Facilitate the parties to communicate openly, to explore the issues in detail and to behave in a respectful manner
      • Facilitate the parties to be and to feel heard and understood, so that there can be a functional shifting from the past, towards a focus on the present and the future – and an agreed outcome
      • Manage any power imbalances and threatened deadlocks, to keep the process moving constructively
      • Not make suggestions to the parties about how they might resolve the dispute
      • Not improperly encourage the parties to continue negotiations if there is a deadlock
      • Not regard the inability to reach an agreement at the Mediation with a sense of failure on the part of the Mediator

Mediation is an invaluable process in narrowing the issues in dispute and in focusing the parties on resolving their dispute. In many cases when an agreement cannot be reached at the Mediation itself, a dispute often ends up being resolved soon after.

Professional fees for Mediation are to be agreed with the clients collectively, upon confirmation of the scope of the work. A flat rate can also be discussed.

See the Resolution Institute Model of Mediation here

See Sir Laurence Street’s booklet: “Mediation, A Practical Outline” here


A common misconception is that there is a distinction between Mediation and Conciliation. Conciliation is a description frequently used in the field of international commercial dispute resolution. Mediation is the preferred description in the United States and the Asia Pacific region, including Australia. – Sir Laurence Street, NSW Bar Association Bar Practice Course on Mediation, July 2007.

 

Facilitation of Expert Witness Conclaves for the Production of a Joint Report

In respect of such matters, it is my preference to act as facilitator and scribe (ie administrative support is not required), as I find that it is more conducive to the detail of the experts’ opinions being captured and the report being able to be finalised and signed by the experts on the same day as the conclave.

Consultancy services re corporate culture, workplace relations, including investigations & risk management advice

These services include reporting to management about workplace culture and risk management issues with respect to opportunities and identified threats to the business.

For example:

  • Successful leaders with contented and high performing employees and what the others in the business can learn from their approach
  • Identification of valued professionals and advice in relation to retention and incentives
  • Effectiveness of the Human Resources function of the business with respect to supporting the management, professionals and support staff across the business (which can sometimes pose conflict challenges)
  • Dysfunctional leadership styles which are a risk to the business because of their revolving door of employees (which is expensive and decreases the productivity and morale of the practice area / business division), and also a potential litigation risk (eg bullying, harassment), and opportunities for positive management
  • Performance and influence of leaders with respect to behaviours such as bullying, harassment, exploitation, mentoring, supervision, fostering of healthy work-life balance, etc

When employees perceive managers and leaders as effective, the percentage of employees who are highly engaged is twice as large as when only the leader is perceived as effective. And highly engaged employees are essential to an effective and successful business. – Towers Watson, Effective Managers.

A candid understanding of workplace culture and risk management threats and opportunities provides a powerful tool to identifying:

  • How to stem high employee turnover
  • Minimizing / preventing potential litigation risks
  • Minimizing / preventing the loss of clients to competitors
  • Obtaining discounts on compulsory professional negligence insurance premiums by demonstrating investment in risk management consulting initiatives like this.

We spend a lot of time teaching leaders what to do. We don’t spend enough time teaching leaders what to stop…Likewise, the recognition and reward systems in most organisations are totally geared to acknowledge the doing of something. We get credit for doing something good. We rarely get credit for ceasing to do something bad. Yet they are flip sides of the same coin.
When people ask me if leaders can really change their behaviour, my answer is this: As we advance in our careers, behavioural changes are often the only changes we can make.” – Marshall Goldsmith, What Got You Here Won’t Get You There

The identification and positive treatment of dysfunctional leadership styles is crucial to the successful performance of any business.

Dysfunctional leadership styles are also likely to have poorly performing financial figures for their practice division, (and hence be a drain on the business profitability overall), due to:

  • High employee turnover because of poor workplace morale
  • Inefficient leadership traits like micro-management, resulting in duplication of work that is either billed for to the client when it should not be, or written off, thereby impacting adversely on the efficiency and productivity of the division as a business
  • Poor performance of employees generally because of lack of motivation, lack of positive engagement, and even resentment towards management.

The consultancy model works as follows:

Deliverable Hours involved
1 Meet with management to identify scope of investigation and reporting Up to 3
2 Conduct workplace interviews with key personnel (across all levels of the business) as previously identified and agreed Up to 10 or as requested by client
3 Provision of written report to Management Up to 10 or in as much detail as requested by client
4 Meet with Management to discuss report and issues arising Up to 3

Referral to various specialist leadership and corporate coaches can be offered, to address risk management issues. (There is no cost or loading involved with such referral). See Management Coaching below.

Follow-up consultancy and support, say every 6 months for 2 to 5 years, is offered, in an attempt to measure the “change organisation” measures which the business may choose to implement, as advised.

Professional fees for this consultation service are to be agreed with the client upon confirmation of the scope of the work. A flat rate can also be discussed.

HR & Executive support in positive performance management of executives, leaders and team professionals

Training, development and professional support is key for a business’ ability to:

  • Maximise the performance and positive influence of its leaders
  • Retain and incentivise valued professionals
  • Demonstrate a proactive and supportive workplace culture with respect to performance management across the entire business.

When employees perceive managers and leaders as effective, the percentage of employees who are highly engaged is twice as large as when only the leader is perceived as effective. And highly engaged employees are essential to an effective and successful business. – Towers Watson, Effective Managers.

Good manager performance requirements include a manager who:

  • Helps to remove obstacles to employee performance
  • Encourages employees to come up with new ideas
  • Treats employees with respect
  • Differentiates high and low performers
  • Assigns tasks suited to individual employees’ abilities
  • Recognizes own strengths and weaknesses
  • Acts in ways consistent with his/her words
  • Conducts effective career management discussions
    (Towers Watson, “Effective Managers”)

 

Following a workplace consultancy report, ADR & Mediation Services is able to offer referral to a number of specialist corporate and leadership coaching professionals as recommended in the circumstances.

Advice and assistance to parties with Open Disclosure in the provision of healthcare services

Performed genuinely and properly, Open Disclosure is a powerful tool in assisting Hospitals and any healthcare provider with successful crisis management as well as invaluable learning opportunities to improve healthcare standards.

Having acted predominately for plaintiffs in medico-legal litigation from 1995 to 2005, I have experienced first hand, the common reasons why patients consult a lawyer in the first place, and am of the opinion that many compensation claims could be avoided if all healthcare providers embrace open disclosure and undertake the process in a genuine manner.

Aggrieved patients and their families seek legal advice for a number of reasons, including:

  • When there was a complication with their medical treatment, no explanation was provided and no opportunity to ask questions;
  • The patient felt they had no where else to turn for answers, for understanding or for assistance;
  • No apology or expression of empathy or regret, was offered;
  • The patient and their family do not want the same event to happen to anyone else;
  • The patient’s complications of treatment have caused a serious adverse impact on their life, including their livelihood, earning capacity and enjoyment of life and they require financial support in respect of this.

In all but the last example, Open Disclosure where any medical complication has occurred, should be able to achieve an effective resolution of issues, if performed in a professional and genuine way.

Similarly, having represented healthcare providers (both hospitals and individuals) in responding to complaints and in defending litigated claims, I understand the personal stress and adverse effect on workplace morale that is inevitably involved. After all, healthcare providers have chosen this vocation and work very hard to provide the best standard of care possible for their patients, often with many competing demands on their time and financial resources and a host of systemic factors beyond their control.

To be the subject of a complaint can:

  • Cause deep personal stress, attack on self esteem and questioning of the individual’s professional judgement;
  • Threaten the healthcare provider’s good standing and professional reputation;
  • Cause the individual to become defensive and avoiding of constructive communication about the issue.

Unexpected patient outcomes are a matter of course and most should be able to be well managed with good communication. Adverse medical events which are actually causative of patient injury – are never intentional. The collateral damage caused by such cases may also be limited significantly, by employing a strategy of early, frank and empathic communication. Although such matters should always be discussed at first instance with the healthcare provider’s professional indemnity insurer whose job it is to help, I am pleased to advise and work with any healthcare provider and team, to assist with the effective implementation of Open Disclosure process, where required.

Good Communication and Open Disclosure in Healthcare:

 

Professional Fees

Professional fees for legal advice and representation, Mediation, ADR and consultation services are to be agreed with the client/s upon confirmation of the scope of the work. A flat rate can also be discussed.
I have 20 years of experience as a litigation lawyer in a range of areas mainly concerning professional and government liability, and have practiced at Partnership level. My proposed hourly rate will generally be commensurate with this level of expertise.
At the same time, I believe that legal and dispute resolution services should be responsive to a client’s needs and affordable.
My approach to the professional fees to be charged in the particular circumstances is with the goal that my clients will consider that they are receiving excellent value for the quality of service that I pride myself on.

 

Mediation is a voluntary process that facilitates the parties to work together in an attempt to reach an agreement. Mediated agreements are more likely to be practical and robust, because the parties themselves have determined the outcome.

“Imagine a wall that’s green on one side and red on the other. You stand on one side and only see green. I stand on the other side and only see red. We’ll both be right about the colour we see, even though we disagree on what colour the wall is.
Being able to realize that the other person has a valid point, even if you disagree with it, that’s the first step towards maturity.” – Oliver Gaspirtz