I have questioned whether the warmth of the subtropics, as well as the collegiality baked into the Queensland profession, has at times made us too comfortable when it comes to embracing change in mediation.
We should be proud of the fact that Queensland was at the forefront of the mediation and ADR movement in Australia. For many years, we led the way. That said, I find myself recently wondering whether we have become too set in our ways.
As part of my practice as a newer mediator, I have made a habit of speaking with mediators across the country to see how they approach their work and the different approaches they take. These conversations have prompted some reflection about whether, in Queensland, we should embrace some change.
Three examples come to mind (just from my more limited recent practise).
Position Papers in Personal Injury Litigation
In multi-party matters, particularly those involving complex apportionment issues, I think we could make more effective use of Position Papers.
Sure – this is more of an impost on busy practitioners – but Position Papers can sharpen the issues, clarify competing contentions, and make a mediation more focused and productive. They are not commonly used in Queensland, but are used much more frequently in other jurisdictions.
Separating Apportionment Issues Where Appropriate
There are cases where it may be prudent to mediate apportionment between defendants/third parties separately and before negotiations commence with the plaintiff.
If the plaintiff’s instructions on various factual issues are required (rare in my experience), those issues can still be appropriately advanced through legal representatives.
I have seen mediations fall over without getting to first base because of apportionment issues, and I wonder whether defendants might embrace an earlier mediation process dealing specifically with these issues. At the very least, it may serve to clarify issues and narrow the gap.
I say this in circumstances where it seems less of the norm for practitioners to now pick up the phone and have without prejudice conversations on issues of apportionment prior to a mediation.
I regularly share short insights on mediation, negotiation and all things leadership. From how to optimise success in negotiations, to the skillset required to sustain high team performance and promote resilience. I share these video reflections, drawing from my experience both as a former leader in professional services and now as a mediator and leadership coach.
"Damien is an incredible Mediator. He is experienced, is always across the brief and has a depth of legal knowledge that can assist the parties to navigate even the most complex issues to reach a resolution. Damien is my first choice for any Mediation, especially for vulnerable plaintiff’s feeling overwhelmed by the process as they are immediately comforted by his affable and empathetic nature.”
Damien was engaged as an Executive Coach in our business to navigate a half-decade of poor habits, realign our leadership team and position us for a strategic exit.Facilitating an executive workshop was instrumental in resolving internal conflicts and realigning us to a collective focus on future opportunities.
I have especially appreciated your logical and calm approach to problem solving, and I have valued your methodical and composed demeanour in tackling complex issues. You have not only equipped me with effective strategies but also instilled a sense of confidence and clarity in my own decision making processes.
