..with apologies to Mr Spock [1]

The title phrase is a label that can be applied to the vast majority of mediations in which I have participated over the last 20 years. As an IAMA accredited mediator I ascribe to the ‘facilitative’ mediation process to assist the parties to collaborate towards a solution. With some notable exceptions [2] , I participated in settlement conferences with the occasional case appraisal and typically ‘shuttle’ mediations. It was mediation but, not as I now know it.

I am also reasonably certain that as a solicitor my clients and I were manipulated by mediators selectively disclosing information. I have also suffered the mediator venturing an opinion on the respective strength of the cases or the ‘this is all its worth’ comment. The case appraisal typically happens in the first private caucus session. Although I once experienced this in the opening session of a mediation, which was akin to a Judge asking the parties at the start of a trial ‘why hasn’t this settled?’ This inappropriate commentary is arguably in breach of the mediator’s duty of impartiality and immediately places the parties at a disadvantage in the negotiation.  It can also put a party’s lawyers in the awkward position of having to justify a contrary advice.

The mediator typically has a discretion about what information to disclose and that has the potential for abuse or manipulation of the parties.   For example the mediator might elect not to disclose that an offer is ‘plus costs’ in order to solicit a counter offer and then only disclosing the ‘plus costs’ component when the timing is ‘right’.  There is also the potential for the deliberate loss of any emotional overlay with the offer [eg an apology] in order to introduce that later as a ‘deal clincher’.   These are very risky strategies for any mediator with the potential for failure of the mediation, a loss of faith by the parties and disciplinary action against the mediator.  The use of this discretion is I believe common in ‘shuttle’ mediations.  

The shuttle mediation does have a role to play in mediation. Laurence Boulle in his book “Mediation skills and techniques” [3] endorses ‘the shuttle’ [4] but contends it should only be used in very limited circumstances where the parties can’t be, or negotiate, in the same room together. For example: legal or safety reasons, intimidation or fear, gross imbalance of bargaining power, linguistic or cultural differences leading to poor communication and finally the need for secrecy or discretion such that the parties can’t be seen to be negotiating.

An acknowledged risk of the shuttle is that the protection a separate room affords also provides a forum to “engage in positional bargaining, threats, bluster and other negotiating tricks..” [5]. 

I am reasonably certain that only a small number of personal injury cases would fall into any of Mr Boulle’s five categories.  And yet ‘the shuttle’ is the ‘accepted’ or ‘usual’ format of mediation in personal injury cases.  Does it have more to do with the party’s lawyer wanting to maintain control of their client and the bargaining process?  Yes I believe it does, but the paradox here is that the shuttle gives to the mediator what Mr Boulle describes as “enhanced potential control and power” [6] as all of the communication is done via the mediator.  A mediator who drops an ‘all its worth’ comment early on and then engages in a shuttle doesn’t inspire confidence in either their impartiality or the mediation process.

I have also experienced other ‘not as I now know it’ mediator moments –  

• no pre-mediation meetings with the parties to establish rapport and gain a first -hand understanding of their respective arguments [thus allowing a party time for reflection];
• the first meeting with the mediator on the day was nothing more than a brief ‘hand shake’ and ‘chat’;
• there was no strong formal opening statement reinforcing the mediator’s role and how the mediation would proceed;
• the mediator refused to allow the mediation to run over time even though the parties were very close to resolution;
• the mediator asserted it would be useful for the opposing lawyers to talk directly unhindered by his involvement or the presence of their clients;
• there was no formal closure of the mediation after settlement and no final meeting of the parties. The insurer’s party left by the proverbial ‘back door’ and was not seen again.

The effect of the last two failures were that my client went from confusion to feeling irrelevant and disconnected with the process and then without any sense of closure. I recall one caustic comment afterwards ‘what did I pay the mediator for – nothing but the use of his room, he didn’t do anything you and my barrister did it all’.  Now that may or may not be true but on that occasion the mediator didn’t provide any level of confidence of being in control of or engagement in the process, quite the opposite. 

The profession has a responsibility to support mediation and ensure that its value to the dispute resolution process is maintained.  The focus clearly has to be on the parties to build their trust in the process, achieve resolution and to provide closure.

So what should you expect from a mediator? 

The mediator has an obligation to engage with the parties prior to the mediation, not on the day of the mediation or worse just before the opening session.  A well drafted information sheet will help the parties to understand the mediator’s approach.  The initial meeting and information exchange is more important for the claimant as typically the commercial defendant is familiar with the process and likely also, the mediator.

At the opening session the mediator has to clearly reiterate their role and that of the participants, how the mediation will proceed, the importance of communication and the exchange of information – what can be disclosed and what is to remain confidential.  The mediator must take particular care to remain impartial, excepting encouraging a party to apologise or express empathy when so required.

The mediator ought to keep sobering the parties by reality testing their evidence, arguments, offers and resist becoming an advocate for either side.   The mediator has to keep their own counsel about the respective cases and not express an opinion on ‘what it’s worth’.  During a shuttle the mediator ought to be quite transparent about what information is being disclosed and if there are confidential communications underway.

The mediator ought to allow for the possibility of the mediation running over time and be able to accommodate the parties continuing to negotiate.

At the end of the mediation, regardless of settlement or not, there must be a final session between the parties. This is typically more important for the claimant’s need for closure as money alone is often not sufficient to heal all their wounds.

^{[1] This phrase is often misattributed to Mr Spock but it was not used in the Star Trek series but rather in the 1987 tribute song ‘Star Trekkin’.
[2] The Patel mediations run by Ian Hanger QC come to mind.  
[3] Butterworths Australia 2001 – ISBN 0 409 31229 0 – see 9.6 to 9.16
[4] A convenient term and not another Star Trek reference!
[5] “Mediation skills and techniques” ibid @ 9.12
[6] “Mediation skills and techniques” ibid @ 9.7}

What is a mediation?

A mediation is a process designed to improve communication between conflicted parties with the aim of a negotiated settlement. The process is started by an agreement signed by the parties appointing the mediator to assist to resolve the dispute.

The role of the mediator

The mediator is independent of the parties and acts in the role of a facilitator or guide for the parties to resolve their dispute. The mediator will not provide the parties with advice, counselling, or decide the dispute. The mediator will remain balanced, impartial and non judgemental. The mediator will maintain a safe and professional environment in the mediation and help the parties to find a negotiated solution. The mediator also assists with the drafting of the terms of an agreement.

The mediator must conform with nationally accepted ethical standards. A copy of these standards will be provided on request.

What happens in a mediation?

There are a number of stages. Prior to the mediation the mediator will usually receive a brief of documents providing information about the dispute. Then each of the parties with their support persons or lawyer will meet with the mediator. At these meetings the mediator will assess the suitability of the dispute and the parties for the mediation process. This is usually straight forward as very few disputes are incapable of being mediated. The mediator may ask the parties to review their position and consider a range of issues before the mediation.

On the day of the mediation each of the parties will attend at the agreed venue with their support person or lawyer. All of the attendees will then meet in an opening session. This session will provide an opportunity to each party to state their position and for the mutual setting of an agenda of contentious issues. Sometimes a party will make an opening offer of settlement at this point. The issues will then be explored in a joint session or in private meetings between the mediator and each of the parties.

The mediator will encourage the parties to generate options for resolution and negotiate an outcome. The resolution will be drafted into an agreement for the parties to sign. The mediation will then conclude.

Are there different ways of mediating?

The parties appoint the mediator to facilitate negotiations towards a resolution. The mediator typically decides issues of process and the manner in which the mediation will proceed. My approach to mediation is facilitative, which best protects the right of each party to self – determination. The aim is for the issues and underlying problems in the dispute to be clearly defined and for a mutually beneficial solution to be developed. Whether this is achieved with all parties in the same place or room openly negotiating or via the parties in different rooms or at different sites does not matter if the basic principles of mediation are met by the parties.

Are there any rules about mediations?

The parties must engage in the mediation in good faith and genuinely attempt to reach a settlement or mutual agreement. All participants must maintain respect for each other, not interrupt and not make derogatory or abusive comments. The entire mediation process is conducted on a ‘without prejudice’ and confidential basis and it is very important that this is maintained by all participants.

By way of example the following must be kept confidential:

• discussion or documents exchanged between any of the parties or the mediator;
• views, suggestions or proposals made by the mediator or any participant as to a possible settlement;
• admissions made by any party;
• any party indicating a willingness to accept any proposal for settlement made by the mediator or any other party;
• any documents created for the purpose of the mediation such as position statements or notes made by the mediator or any party.

What if the mediation does not result in a settlement?

Only about 15% of disputes that proceed to mediation don’t result in a settlement. However, there is always a measure of success in mediation, even with one that does not result in a settlement. The mediation will have the effect of focussing the parties on the issues and providing a much better understanding of their respective positions. The enhanced level of communication achieved in the mediation often leads to a post mediation settlement.

Who pays for the costs of the mediation?

Typically the costs of the mediation are shared equally between the parties and the agreement provides that whoever succeeds in any related court process will recover their part of the costs. Sometimes one party will pay for all of the mediation costs in an effort to support a negotiated resolution.

What is Preventive Law?

As a discipline Preventive Law (‘PL’) was first proposed as a legal concept in the 1950’s by Louis M Brown who is widely regarded as the founder of Preventive Law.
[see – http://www.preventivelawyer.org/main/default.asp].

The term Preventive Law is used as a unique descriptor of ‘legal’ risk management. This is to differentiate it from Risk Management per se and the pre-existing definition predominately associated with the prevention of workplace injury.

The basic premise of Preventive Law is that lawyers can better assist their clients by the proactive investment of resources in consultation and planning rather than relying on reactive dispute resolution as a way of addressing legal problems. The benefit, or detriment, of past experience is invested into current conduct to limit the frequency and scope of future legal problems. A properly developed and integrated PL strategy promotes a change in human behaviour as a means to better manage legal risk.

The management of risk in business is a daily occurrence but, I suggest that the management of legal risk via PL will be a novel concept to the majority of businesses.   PL should be regarded as part of an organisation’s overall risk management strategy. It follows the same systematic lines as a ‘classic’ risk management process, identify risk, manage and feedback to the client with a view to improvement.
What are the benefits of Preventive Law to a Business?

The most important benefits are better corporate governance and an increased profit margin.

A sub component of Corporate Governance is corporate oversight, which provides a means of determining compliance with laws and regulations as well as internal corporate controls without interfering with business productivity.

A continuous proactive approach to a business’ legal risk rather than an annual or, worse, an ad hoc crisis review, will avoid large scale expenditure to correct a future problem or being involved in litigation or a regulatory prosecution.  A key feature of PL is a mandatory requirement for all decision makers to consider the early engagement of legal assistance with a project, endeavour or business decision.  This reflects what sophisticated clients and experienced lawyers have been doing as a matter of course for a long time. This approach can provide a continuous real time stream of relevant information for corporate oversight via the business’ legal department.

Private lawyers, as opposed to ‘in house’, are an expensive input to any business.  That expense increases exponentially the more urgent or complex the problem to be solved.  Typically an urgent issue will involve a team of lawyers to solve the problem and provide advice and support. That team of lawyers often lead by a partner or senior associate will cost several thousand dollars an hour. A monthly legal bill of $50,000 – $80,000 is typical for large scale litigation.

Do managers understand and address legal risk?

The larger and more complex an organisation the more ‘distance’ that exists between the owners or Board of Directors and the day to day business activity. Typically decisions are made by various levels of management via delegated authority, either financial or contractual. Some of the decisions can result in significant failures to address legal or commercial risk, due solely to the inexperience of the manager or the employee who prepared the brief for decision and in the absence of legal input.

But, there is only so much supervision that senior managers are capable of performing.  From my experience I have distilled a recipe or formula if you like, for business disaster =
A manager employed or promoted into a middle to senior position + commercially unsophisticated / poor match of skill set + minimal or no training / handover + pressure to perform and deliver + delegations to sign and spend + lack of supervision or by assumption

Each one of these points is illustrative of multiple similar events and are drawn from my personal experience –

• Unrealistic time frames for legal advice – 11th hour
• Advice being ‘ignored’ or ‘modified’
• “Legal advice” = “obstructive or unhelpful” not protective of the business
• Late or on the day notification of court / tribunal action
• Entry into Contracts without advice
• Ignoring the contract terms and obligations
• Undocumented ‘arrangements’ with third parties
• Engaging providers outside of ‘panel’ arrangements
• Agreements in breach of industrial awards
• Ignoring risk averse purchasing policy in order to obtain vendor’s $ discount
• Accepting vendors terms when adverse – IP owned by vendor, maintenance costs by business
• Undocumented retainers – cash advance
• Project completed + $ paid but no contract – breach of financial accountability / internal audit policy
• Deliberate ‘splitting’ of payments for settlement of claims to under financial limit to avoid reporting to corporate office
• Failing to enforce own HR policies – bullying and harassment

In some of these events the culprits were quite senior management of whom there would be an expectation that they ‘ought to have known better’.  Most of these events will cost a business a great deal of money in increased internal expenditure or legal costs.

A preventive law strategy

If your organisation has experienced any of these events, or worse, you don’t know if it has or not, then PL is the pathway to follow from now on. The introduction of a PL strategy and legal risk management processes will provide much better control of risk and avoiding this type of behaviour in the future.    Every organisation has the capacity to better identify and manage its legal risk.

One measurable effect of the introduction of P L will be an increase in requests for legal advice.  But, rather than the increase in workload being a negative, it will be a genuine positive.  The referrals will be much earlier in the business process which will allow for a better allocation of capped resources and a genuine priority process linked to overall risk rather than just urgency of time.  The limit on resources and the requirement to deliver on time are drivers for all in-house counsel.

And of course another benefit for in house counsel will be a system to collate good quality evidence of recalcitrant behaviour by staff with a responsibility to report that to senior management.  Accountability is a powerful motivator to change human behaviour.

The above examples are also illustrative of the benefit to an organisation of an experienced manager or from the lawyer’s viewpoint, a ‘sophisticated’ client. Sophisticated clients understand why, when, and how to use legal services. Typically these clients have a legal, accounting or commercial background or have years of business experience to call upon. In the absence of such professional qualifications or experience then a legal risk management process can compensate and educate staff about legal risk and when to use legal services.

If your organisation is well managed and without such examples that does not mean that PL is of no use.  It is still a very effective tool to educate colleagues and staff and modify their behaviour to become better users of legal services. It can also collate a sophisticated data set about the business itself that can be used to identify risk hot spots and anticipate the need for more staff or funding or a need to review parts of the business.

A key component of my PL strategy is a self – assessment legal risk rating tool that is customised to the risk appetite of the business as determined by senior management.  A number of such tools can be created to reflect different aspects of business operations. For example a purchasing group that routinely spends a $1 million at a time via a well drafted standard contract will have a much lower legal risk profile than the marketing department wanting to spend the same amount on a sponsoring a sporting team.

With the benefit of my experience I can assist you to ensure a smooth translation of the PL strategy and process into your business.

Peter is a consultant with a unique combination of experience and achievement in health, insurance, government and business. Peter has performed a number of professional roles as solicitor for plaintiff or defendant, claims manager, Corporate Counsel, instructing officer and adviser to the Minister for Health and State Cabinet. He is recognised and respected within government, by the legal profession, health professionals, and insurers.

He has now focused his career into a consultancy that incorporates mediation and legal risk management.

A consultancy that incorporates mediation and preventive law

In the last 20 years he has been involved with providing legal and business advice about the delivery of healthcare in both the public and private setting, including litigation, human resource management, health professional issues, change management, research, intellectual property, finance, budget, procurement, strategic planning, IT, restraint of trade and State / Federal issues.

Peter’s litigation experience includes a wide range of personal injury claims (CTP, WorkCover, public liability and health malpractice) and commercial claims to settlement, mediation, trial and appeal. He played a significant role in the 2005 Bundaberg Hospital / Queensland Health Royal Commissions and in the resolution of the claims against Dr Jayant Patel. Peter estimates he has personally resolved over 2000 disputes and at least half of these were resolved via mediation. He understands all of the drivers and barriers to resolution within the entire claims process.

Peter became an accredited mediator in 2014 via the Institute of Arbitrators and Mediators Australia. As a mediator, Peter will lend his experience and unique claims perspective to all parties in a dispute. He is an effective communicator and builds rapport and trust with an open, empathetic and influential manner. He will establish trust, enable communication, reality test, make practical observations and innovative suggestions to assist with resolution.

Peter developed a unique legal risk management strategy and self – assessment tool for Queensland Health to better regulate the legal risk in business endeavours and projects. This tool can be adapted and applied to any business with the aim of reducing overall legal expenditure.

He is a sought after speaker and educator and has authored the Public Health chapter of the Laws of Australia as well as a number of medico legal presentations,  with the aim of educating health professionals about the intersection between law and health.

An essential, invaluable part of the mediation of a personal injury claim is an apology. It is the first step towards placating emotions that interfere with interest based bargaining.

An apology is as valuable and as important to a claimant as being compensated. Unlike the commercial claim that devolves to a contest over property, rights or money the personal injury claimant has a constant daily reminder of the failure of another. The malpractice claimant almost inevitably includes a component of a breach of trust with the health care provider. The road accident victim blames the person who ought to have been a better driver, the injured worker their employer who didn’t look after them and the customer the shop owner for not cleaning up properly.

The personal injury claimant often develops a form of ‘litigation neurosis’ facilitated by a claims process that requires a ‘re-telling’ of their story over and over again to their lawyers and expert witnesses. The health care provider, driver, employer or shop keeper becomes increasingly more vilified in the claimant’s mind. This becomes a significant emotional feature in their life effecting all around them, relatives and friends alike. The claimant’s emotional response to their injury spills over into the claim and is an impediment to interest based bargaining in a mediation. The claimant wants and needs acknowledgement of their pain and suffering from their ‘wrongdoer’ before they are capable of rational negotiation.

There is a minority view that an apology is a worthless exercise, but the use of an apology, saying ‘sorry’, the expression of remorse, is so integral to our society that it is part of the normal, expected behaviour of a ‘wrongdoer’. So, when an apology is not offered or made this only serves to aggravate the claimant’s emotions and pushes them away from rational negotiation – best interests are ignored, concessions that might have been made are not, positions are maintained, their bottom line becomes fixed.

This aggravation is largely out of the claimant’s control due to the neurological impact of Cortisol, the brain’s own stress chemical that interferes with the higher cognitive reasoning processes. Each stressful event induces a dose of Cortisol and like other drugs, it takes some time to dissipate from the bloodstream. If the stressful events are compounded one after the other then several doses of Cortisol hit the brain in quick succession. The result is a Cortisol overload and a ‘high-jacking’ of the rational mind and emotions that only time and calming behaviour can restore .

The claimant with a firmly entrenched neurosis about the claim already has a significant level of ongoing stress. Their family and friends suffer the claimant’s short temper, impatience or teary episodes. Each time the claimant is focused on the claim by their lawyer or a medical appointment they suffer stress and their mind / emotions are subjected to a dose of Cortisol. The period leading up to the mediation and the mediation itself will be very stressful. The claimant’s lawyer is increasingly relied upon for emotional support and a calming influence.

An emotionally ‘high jacked’ claimant is incapable of rational interest based decisions and thus useless in a mediation and I suggest incapable of giving instructions due entirely to their temporary lack of reason.

A claimant that I acted against sobbed her way through two separate mediations because her claim of awareness under anaesthesia was disbelieved, liability was denied and there was no thought of an apology. In her own mind she genuinely believed that she had been so aware and the stress of the claim process and mediation had high jacked her emotions to the point of despair.

An apology is not an apology when it is couched in terms of ‘I am sorry that you feel that way’ or that ‘you have suffered’ with no acknowledgement of fault or offer of recompense. An apology is an expression of remorse and, to paraphrase Benjamin Franklin, it ought not be ruined with an excuse. A good apology has three parts – I’m sorry, it’s my fault and what can I do to make it right?

In my role as Corporate Counsel for Queensland Health I was the apologist for the Minister for Health and the Queensland Government in the mediations of claims against Dr Patel. I looked into the eyes of over 350 people and acknowledged their grief, admitted the government’s fault in employing Dr Patel and stated a genuine intention to negotiate compensation. The range of responses was remarkable for their consistency. Almost every claimant was thankful for the apology and acknowledgment of their plight against what had been the legal theatre of the Royal Commissions. The emotional responses could easily have been plotted on a classic bell curve. The majority demonstrated palpable relief with outliers of genuine hostility at one end to a nonchalant silence on the other.

The positive flow on effect of the apology on these claimants was reported back by the mediator Ian Hanger QC as well as by their lawyers. The substantial majority of the negotiations proceeded in a calm and rational manner with a success rate of higher than 95%. The acknowledged claimant, (apology received) is imbibed with a feeling of vindication, emotionally calmer and capable of considering their best interests to get resolution.

So my experience is that an apology is a powerful tool with benefits to both parties, why then is the delivery of an apology such a ‘hit and miss’ affair in mediations?

The answer is not an easy one to define.

There is a natural distinction between the ‘wrongdoer’, who can’t help but have an emotional engagement to some degree with the injured claimant and their insurer. Sometimes the insurer actively prevents the ‘wrongdoer’ from apologizing consistent with a corporate strategy of denial of liability regardless of the facts.

The last round of legislated tort reforms in Australia, circa 2002, recognized the value of an apology and the dilemma posed to insurers with the introduction of the ‘no fault or consequence’ apology or the ability to say sorry without effecting a defence .

Aside from the atypical ‘caring’ claims handler or manager, emotions are rarely stirred in the insurer. Insurers are in the business of being dispassionate, their actuarial world tries to minimize risk, predict outcomes and reduce liability and quantum. A claimant to an insurer is a file number, a reserve, an entry in a database and something to be finalized as soon as possible. Claimants are quite deliberately not viewed as people with emotions, family, friends, lifestyle or any need to be acknowledged. In the financial report, claimants are treated collectively as contingent liabilities on a balance sheet.

There is also a distinction to be drawn between ‘old school’ insurers and sophisticated or ‘new school’ insurers. Sophisticated insurers will recognize the value of an apology not only to the claimant but also to their insured, in whom it satisfies the basic human response of empathy to pain and suffering as well as to the negotiation process.

The mediation is a focus point for all the parties to engage in resolution. There is significant time, effort and expense involved in getting to a mediation and it ought not be wasted. My experience across 20 years of mediations is that the sophisticated insurer, upfront with an apology made by the wrongdoer or their representative is far more successful at mediation than the ‘denial of liability but we are prepared to make you an offer’ approach that typifies the old school.

The issue of an apology ought to be raised at the induction or start of the mediation process by the mediator with the lawyers for all parties. The lawyers for an insurer reluctant or refusing to make an apology have a responsibility to persuade their client of its effectiveness to the negotiation process and measurable value – e.g. lower costs, potential for concessions in the claim and resolution.

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Lorem ipsum dolor sitet, consectetuer adipiscing elit, sed diam nonummy nibh euismod tincidunt ut lreet dolore magna aliquam erat volutpat. Ut wisi enim ad minim veniam, quis nstrud exerci tation ullamcorper sscipit lobortis nisl ut aliuip ex ea commodo consquat. Lorem ipsum dolor sitet, consectetuer adipiscing elit, sed diam nonummy nibh euismod tincidunt ut lreet dolore magna aliquam erat volutpat.