My Approach

As a litigator for 20 years, my approach would be to conference comprehensively with my prospective client from the outset;  to listen carefully, to gain a genuine understanding of their needs and objectives, and to build trust. That would inform me on a practical and achievable management strategy that my clients could have agency in and depend on.

As a mediator & facilitator, I take the same approach. I put the work in the front end, seek to gain the trust of the participants and manage expectations in a way that inspires confidence in achieving a fair outcome.

I believe that a mediator can make all the difference in the settlement of a dispute by assisting the parties to set themselves up for success well before the day.

It is my usual practice to gain an understanding of the matter from the time that a booking is confirmed, so that I can consider whether a bespoke process may assist or be alive to any issues that may benefit from mediator input during the preparation process.

  • timing for service of the brief & position papers (if used),
  • whether a Deed may be requested and if so: what timing would be best,
  • conversely, is any request for a Deed likely to be rejected outright by a claimant and risk de-railing the negotiations?
  • whether any party may benefit from additional pre-mediation conferences with the mediator,
  • in a matter with multiple defendants, can apportionment be agreed?
  • are there any trauma issues that everyone needs to be mindful of?
  • for abuse survivors: what venues are appropriate / has a restorative engagement process been requested / what is the approach of the respondent?
  • does any party consider that further discovery or information is required to be disclosed before the mediation date?
  • why has the matter not settled to date? What are the key issues that need to be focussed on?

My Approach

As a litigator for 20 years, my approach would be to conference comprehensively with my prospective client from the outset;  to listen carefully, to gain a genuine understanding of their needs and objectives, and to build trust. That would inform me on a practical and achievable management strategy that my clients could have agency in and depend on.

As a mediator & facilitator, I take the same approach. I put the work in the front end, seek to gain the trust of the participants and manage expectations in a way that inspires confidence in achieving a fair outcome.

I believe that a mediator can make all the difference in the settlement of a dispute by assisting the parties to set themselves up for success well before the day.

It is my usual practice to gain an understanding of the matter from the time that a booking is confirmed, so that I can consider whether a bespoke process may assist or be alive to any issues that may benefit from mediator input during the preparation process.

  • timing for service of the brief & position papers (if used),
  • whether a Deed may be requested and if so: what timing would be best,
  • conversely, is any request for a Deed likely to be rejected outright by a claimant and risk de-railing the negotiations?
  • whether any party may benefit from additional pre-mediation conferences with the mediator,
  • in a matter with multiple defendants, can apportionment be agreed?
  • are there any trauma issues that everyone needs to be mindful of?
  • for abuse survivors: what venues are appropriate / has a restorative engagement process been requested / what is the approach of the respondent?
  • does any party consider that further discovery or information is required to be disclosed before the mediation date?
  • why has the matter not settled to date? What are the key issues that need to be focussed on?

Preparation & process

I don’t publish my availability on my website. Please telephone or email for my dates. I respond most quickly to email inquiries and always on the same day.

I will also agree to have dates marked in my diary and held on a “tentative” basis, until I seek confirmation either way.

Bookings can be for a half or full day as required. I usually do not schedule 2 matters on the same day unless they are related. That way, the mediator’s diary does not dictate the start or finish time of the mediation and I can give it my full energy.

Correspondence regarding an initial inquiry also helps me to:

  • make space in my diary where I can,
  • think about whether a bespoke mediation process may be beneficial,
  • tailor a suggested preparation timetable when a booking is confirmed.

On confirmation of a booking, I will send a joint email to the parties setting out:

  • Date, time, venue if known.
  • Suggested timetable for preparation, incl service of an electronic brief and disclosure of position papers.
  • I will always tailor the timetable to the matter.
  • If the mediation is by order of a Court, reference to the relevant rules (eg UCPR 20.6 in NSW) which may require attendance by an insurance claims manager / authorised officer of a corporation with authority to settle, if the mediation is by Order of the Court.
  • If a respondent requires a Deed to be executed as a condition of the negotiations being successful, it may be prudent to submit a draft to the applicant in advance so that expectations can be managed. Conversely, is the request for a Deed likely to be rejected outright by a claimant and risk de-railing the negotiations?
  • Reference to my fees, including if I offer to amend these these from what is set out in my Mediation Protocol and this website.

I take a “hands-on” approach to mediation and am big on preparation.

By “hands-on”: I see the mediator role as being to diffuse tension, prevent or shift entrenchment, think a few steps ahead to identify and address any roadblocks in advance, and provide support and empowerment for a party to feel positive about their decision to settle.

Separate pre-mediation conferences enable me as the mediator to:

  • Understand why I have been selected for the matter, how the parties may be expecting me to assist
    (facilitative, determinative, or a mixture of each), and consider how I can best assist;
  • “Read the room” in advance — important for assisting the mediator to cater for the role expected by the parties and identify any issues for troubleshooting;
  • Build rapport, which is crucial for when the parties may start to “give up” but the mediator has developed a sense that the matter can settle;
  • Ask about all key legal, factual and other features and logistics of the mediation — the sort of detailed information which may or may not be included in a position paper – see tips for a great position paper below);
  • Ascertain who will and won’t be attending and consider how that may impact the communications;
  • Ascertain that a person with authority to settle the matter will be in attendance;
  • Canvass whether a joint opening is likely to be constructive or is better avoided;
  • If the matter is suitable for a joint opening – who is likely to be speaking and what will be the tone of those discussions?
  • If the Plaintiff is to consider speaking (supported by their legal team), discussions around assisting the Plaintiff to prepare, are important.

In jurisdictions where these are used, I invite the parties to consider the disclosure of position papers (including a damages schedule or commentary on damages), for the purposes of the mediation.

I will usually ascertain the nature of the matter before sending my booking confirmation email, so that I can suggest an appropriate timetable for exchange of papers. For example:

  • A government respondent usually needs a number of weeks to prepare for the day and it is important to have an applicant’s most up-to-date statement about the key issues and quantum claimed so that it can reserve and respond adequately. Failure to settle on the day is often because new information was provided without sufficient time to make allowances for it.
  • In any matter involving survivor trauma, it is often important for the applicant to know in advance what the respondent’s approach will be on the day. The most trauma-informed way of managing this is for the respondent’s paper to be served in sufficient time to allow the Claimant’s legal team to discuss this with them before the mediation.
  • Exchange and/or content of position papers can often be an important issue for prior discussion with the mediator, to guard against the possibility that such papers may end up impacting adversely on the process.

I find that position papers are generally very constructive for a number of reasons, including:

  • They signal the approach being taken to the claim;
  • They enunciate in writing that a party intends to participate in good faith, understands the imperative for compromise and has a genuine desire to resolve the matter;
  • They enable a party’s legal position to be communicated comprehensively, together with any supporting documentation, so that the other party isn’t taken by surprise at the mediation and has time to prepare a response and be in a position to negotiate;
  • They can assist greatly in identifying the key factual and/or legal issues, so that the mediation can also be a constructive forum for clarifying any misunderstandings and narrowing the issues in dispute — even if the matter can’t be settled at mediation.

Tips for a Great Position Paper

Not necessarily a “checklist” for every matter:

  • Set out the parties and attendees (if known);
  • Include information regarding the litigation status — has a hearing date been set?
  • Provide a brief account of attempts to resolve the initial dispute or avoid litigation, as well as more recent attempts to settle the litigation;
  • Set out, briefly but with adequate detail, the facts of the dispute and the key legal issues;
  • Set out the allegations or defence, indicating what the various opposing experts have supported;
  • Compare the areas of agreement and divergence between the experts, with a critique of the divergence;
  • Consider whether there is anything the party thinks the others don’t understand that requires emphasis or clarification;
  • Set out the legal costs to date, the immediate work to be actioned, and the projected further costs estimate if the matter does not settle;
  • The most effective position papers have a respectful, conciliatory tone and are not “shouty”, overly confident or derogatory;
  • For matters requiring a trauma-informed approach, tone and context around the facts and evidence discussed are fundamental;
  • A paper which repeats the pleadings with little else risks being interpreted as an attempt to “tick the box” and, at worst, a “red flag” for the level of preparation for and willingness to compromise at the mediation;
  • Conclude with a conciliatory statement expressing the party’s acknowledgement of risk and desire to negotiate a settlement. This may seem obvious, but it can be another “red flag” if such a statement is not made.

It is my usual practice to arrive at the venue early so that I’m there to greet the participants as they arrive & get settled, and be ready to confer with each party and their legal team separately, before any joint session.

That enables me to introduce myself, hear from each party about the issues most important to them, “read the room”, explain the process and how I can assist, and discuss how to proceed.

It’s also an important opportunity to begin the process of managing expectations around compromise in all parties and participants.

Whether to have a joint opening and what that may look like, is often a matter for discussion on the day (as well as during the pre-mediation intakes) and it’s important that all participants have agency in that.

Done well, a joint opening can:

  • be empowering – so very important for addressing emotions caused by the subject matter of the dispute;
  • establish a positive tone for the communications and negotiations to follow; and
  • be an important first catalyst to shifting or preventing entrenchment.

Some matters will not be assisted by any form of joint opening and it is far more constructive for the mediator to “shuttle” between the parties’ rooms from beginning to end.

A bespoke process in some shape or form is usually called for, depending on the features of each matter and I am assisted in each conversation that I have with the stakeholders before the mediation and upon arrival on the day.

In my experience, the best results at mediation are achieved when the parties use the mediator to assist with the strategy & negotiations, ask for my input, and are candid with me.

I can monitor the parties’ attitudes, including in response to an offer or comment, recommend how best to respond to maintain goodwill with opponents whilst being aligned to a party’s objectives, assess the continued willingness to compromise, consider what outcomes may be possible even when the parties don’t tell me directly, keep the negotiations going, and know when there is a genuine impasse.

I will routinely offer at the end of the mediation day to keep the discussions going, if I have gained the sense that a settlement is achievable but will just take a little longer. I offer this without further fees involved because I’m mindful of the joint objective of efficiency.

In keeping with the objective of efficiency, I do make every effort to facilitate the resolution of a matter on the day but sometimes this isn’t possible or appropriate, for a number of reasons.

In these situations, I will invite the parties to “keep the mediation open” for a particular timeframe depending on the matter, so that there is a continued window for further dialogue on a without prejudice basis, being under cover of the mediation. If all parties don’t agree to this then the mediation is terminated.

I’ve helped the parties to settle many different types of matters beyond the mediation day itself, which is consistent with my “holistic” approach.

Preparation & process

I don’t publish my availability on my website. Please telephone or email for my dates. I respond most quickly to email inquiries and always on the same day.

I will also agree to have dates marked in my diary and held on a “tentative” basis, until I seek confirmation either way.

Bookings can be for a half or full day as required. I usually do not schedule 2 matters on the same day unless they are related. That way, the mediator’s diary does not dictate the start or finish time of the mediation and I can give it my full energy.

Correspondence regarding an initial inquiry also helps me to:

  • make space in my diary where I can,
  • think about whether a bespoke mediation process may be beneficial,
  • tailor a suggested preparation timetable when a booking is confirmed.

On confirmation of a booking, I will send a joint email to the parties setting out:

  • Date, time, venue if known.
  • Suggested timetable for preparation, incl service of an electronic brief and disclosure of position papers.
  • I will always tailor the timetable to the matter.
  • If the mediation is by order of a Court, reference to the relevant rules (eg UCPR 20.6 in NSW) which may require attendance by an insurance claims manager / authorised officer of a corporation with authority to settle, if the mediation is by Order of the Court.
  • If a respondent requires a Deed to be executed as a condition of the negotiations being successful, it may be prudent to submit a draft to the applicant in advance so that expectations can be managed. Conversely, is the request for a Deed likely to be rejected outright by a claimant and risk de-railing the negotiations?
  • Reference to my fees, including if I offer to amend these these from what is set out in my Mediation Protocol and this website.

I take a “hands-on” approach to mediation and am big on preparation.

By “hands-on”: I see the mediator role as being to diffuse tension, prevent or shift entrenchment, think a few steps ahead to identify and address any roadblocks in advance, and provide support and empowerment for a party to feel positive about their decision to settle.

Separate pre-mediation conferences enable me as the mediator to:

  • Understand why I have been selected for the matter, how the parties may be expecting me to assist
    (facilitative, determinative, or a mixture of each), and consider how I can best assist;
  • “Read the room” in advance — important for assisting the mediator to cater for the role expected by the parties and identify any issues for troubleshooting;
  • Build rapport, which is crucial for when the parties may start to “give up” but the mediator has developed a sense that the matter can settle;
  • Ask about all key legal, factual and other features and logistics of the mediation — the sort of detailed information which may or may not be included in a position paper – see tips for a great position paper below);
  • Ascertain who will and won’t be attending and consider how that may impact the communications;
  • Ascertain that a person with authority to settle the matter will be in attendance;
  • Canvass whether a joint opening is likely to be constructive or is better avoided;
  • If the matter is suitable for a joint opening – who is likely to be speaking and what will be the tone of those discussions?
  • If the Plaintiff is to consider speaking (supported by their legal team), discussions around assisting the Plaintiff to prepare, are important.

In jurisdictions where these are used, I invite the parties to consider the disclosure of position papers (including a damages schedule or commentary on damages), for the purposes of the mediation.

I will usually ascertain the nature of the matter before sending my booking confirmation email, so that I can suggest an appropriate timetable for exchange of papers. For example:

  • A government respondent usually needs a number of weeks to prepare for the day and it is important to have an applicant’s most up-to-date statement about the key issues and quantum claimed so that it can reserve and respond adequately. Failure to settle on the day is often because new information was provided without sufficient time to make allowances for it.
  • In any matter involving survivor trauma, it is often important for the applicant to know in advance what the respondent’s approach will be on the day. The most trauma-informed way of managing this is for the respondent’s paper to be served in sufficient time to allow the Claimant’s legal team to discuss this with them before the mediation.
  • Exchange and/or content of position papers can often be an important issue for prior discussion with the mediator, to guard against the possibility that such papers may end up impacting adversely on the process.

I find that position papers are generally very constructive for a number of reasons, including:

  • They signal the approach being taken to the claim;
  • They enunciate in writing that a party intends to participate in good faith, understands the imperative for compromise and has a genuine desire to resolve the matter;
  • They enable a party’s legal position to be communicated comprehensively, together with any supporting documentation, so that the other party isn’t taken by surprise at the mediation and has time to prepare a response and be in a position to negotiate;
  • They can assist greatly in identifying the key factual and/or legal issues, so that the mediation can also be a constructive forum for clarifying any misunderstandings and narrowing the issues in dispute — even if the matter can’t be settled at mediation.

Tips for a Great Position Paper

Not necessarily a “checklist” for every matter:

  • Set out the parties and attendees (if known);
  • Include information regarding the litigation status — has a hearing date been set?
  • Provide a brief account of attempts to resolve the initial dispute or avoid litigation, as well as more recent attempts to settle the litigation;
  • Set out, briefly but with adequate detail, the facts of the dispute and the key legal issues;
  • Set out the allegations or defence, indicating what the various opposing experts have supported;
  • Compare the areas of agreement and divergence between the experts, with a critique of the divergence;
  • Consider whether there is anything the party thinks the others don’t understand that requires emphasis or clarification;
  • Set out the legal costs to date, the immediate work to be actioned, and the projected further costs estimate if the matter does not settle;
  • The most effective position papers have a respectful, conciliatory tone and are not “shouty”, overly confident or derogatory;
  • For matters requiring a trauma-informed approach, tone and context around the facts and evidence discussed are fundamental;
  • A paper which repeats the pleadings with little else risks being interpreted as an attempt to “tick the box” and, at worst, a “red flag” for the level of preparation for and willingness to compromise at the mediation;
  • Conclude with a conciliatory statement expressing the party’s acknowledgement of risk and desire to negotiate a settlement. This may seem obvious, but it can be another “red flag” if such a statement is not made.

It is my usual practice to arrive at the venue early so that I’m there to greet the participants as they arrive & get settled, and be ready to confer with each party and their legal team separately, before any joint session.

That enables me to introduce myself, hear from each party about the issues most important to them, “read the room”, explain the process and how I can assist, and discuss how to proceed.

It’s also an important opportunity to begin the process of managing expectations around compromise in all parties and participants.

Whether to have a joint opening and what that may look like, is often a matter for discussion on the day (as well as during the pre-mediation intakes) and it’s important that all participants have agency in that.

Done well, a joint opening can:

  • be empowering – so very important for addressing emotions caused by the subject matter of the dispute;
  • establish a positive tone for the communications and negotiations to follow; and
  • be an important first catalyst to shifting or preventing entrenchment.

Some matters will not be assisted by any form of joint opening and it is far more constructive for the mediator to “shuttle” between the parties’ rooms from beginning to end.

A bespoke process in some shape or form is usually called for, depending on the features of each matter and I am assisted in each conversation that I have with the stakeholders before the mediation and upon arrival on the day.

In my experience, the best results at mediation are achieved when the parties use the mediator to assist with the strategy & negotiations, ask for my input, and are candid with me.

I can monitor the parties’ attitudes, including in response to an offer or comment, recommend how best to respond to maintain goodwill with opponents whilst being aligned to a party’s objectives, assess the continued willingness to compromise, consider what outcomes may be possible even when the parties don’t tell me directly, keep the negotiations going, and know when there is a genuine impasse.

I will routinely offer at the end of the mediation day to keep the discussions going, if I have gained the sense that a settlement is achievable but will just take a little longer. I offer this without further fees involved because I’m mindful of the joint objective of efficiency.

In keeping with the objective of efficiency, I do make every effort to facilitate the resolution of a matter on the day but sometimes this isn’t possible or appropriate, for a number of reasons.

In these situations, I will invite the parties to “keep the mediation open” for a particular timeframe depending on the matter, so that there is a continued window for further dialogue on a without prejudice basis, being under cover of the mediation. If all parties don’t agree to this then the mediation is terminated.

I’ve helped the parties to settle many different types of matters beyond the mediation day itself, which is consistent with my “holistic” approach.