Are forceful mediators effective?

Rather than seeking out a robust mediator it’s probably of greater benefit to find a mediator with good people skills. We frequently hear lawyers voice the need for a strong (or forceful) mediator for their dispute. What kind of qualities do lawyers expect in a “strong mediator”? Is a strong mediator expected to make the parties tremble? Or is it someone who is able to “bang heads together” or who knows the law or can evaluate who has the best case and tell the parties so. Or is it a tough negotiator or someone who has little regard for the classical models of mediation but can accomplish a settlement – or someone who is just simply a good mediator? Read more … by Jonathan Kaplan – 01 Oct 2018 (Law Institute...

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Early mediation of TFM disputes

 – and the challenges facing lawyers and mediators As a mediator I have in the past been involved in several Testator Family Maintenance (“TFM”) disputes so I thought that it might be helpful to share some observations in the hope that this article might assist in tackling mediations of that kind. Lawyers and mediators will no doubt be aware of the subtle, and sometimes not so subtle, differences between a commercial dispute and a TFM dispute, the latter, not unlike a matrimonial dispute, requiring some special skills. The story of an elderly gentleman who had serious hearing problems for a number of years is perhaps illustrative. His GP referred him for hearing aids. When he returned to the GP for review a month later the doctor remarked: “Your hearing is perfect. Your family must be really pleased that you can hear again”. The gentleman replied, “Oh, I haven’t told my family yet about the hearing aids. I just sit around and listen to their conversations but I’ve changed my Will three times since!” In Victoria Part IV of the Administration and Probate Act 1958 (Vic) was amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (“Act”), to allow, inter alia, for claims by an “eligible person” who may now bring a claim where there is a dependency (wholly or partly) on the deceased for the person’s proper maintenance and support, and where at the time of death the deceased had a moral duty to provide for that person, and the distribution of the deceased’s estate failed to make such provision.ˆ The amended Act has now been in operation for just over 3 years. A lawyer’s dilemma often is to decide when to mediate. In a previous article in the LIJ,° I noted that early mediation can engender a spirit of cooperation between lawyers and obviate entrenched and polarised positions as opposed to the situation when significant amounts have been spent on legal fees, making the challenge much greater. Prior to the amendments to the Act, the Court could make costs orders which in its opinion were just.˜ (and which usually involved the plaintiff’s costs being paid out of the estate assets) but could order costs against the plaintiff if the claim was made frivolously, vexatiously or with no prospect of success.† The position in the preceding paragraph was repealed by the amendments to the Act and as a consequence costs are now be left to be determined on the basis that the unsuccessful plaintiff may likely be ordered to pay costs, rather than the costs being paid from the pool of estate assets. The defendant trustee’s position has presumably remained unchanged as a consequence of a trustee’s right to be indemnified out of a trust fund. These costs considerations alone are now more than likely a significant incentive for the plaintiff to consider embarking upon early mediation rather than risking a costs order in the event of an unsuccessful claim or, even if successful, risking considerably diminishing the asset pool by the colossal costs which could be incurred and which could otherwise be available for distribution to the beneficiaries. There are a variety of factors that might influence a plaintiff – or for that matter the parties generally – in deciding whether or not to mediate early. Some of those factors are: Certain new provisions contained in Section 91A‡ of the Act that the Court must have regard to in making a TFM provision order. What might be relevant here is the anecdote, were it true, of the testator with the hearing problem and what he might have...

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Choosing A Mediator

Choosing a Mediator

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Extended powers for the Victorian Small Business Commissioner

The Small Business Commissioner Act 2003 (Act) has been amended by the Small Business Commissioner Amendment Act 2014, with changes operational from 1 May 2014. Of particular interest are the changes relating to the increased powers of the Victorian Small Business Commissioner (Commissioner) which impact upon and broaden the matters which it will now be able to handle. Amongst other amendments, Section 5(2)(c) of the Small Business Commissioner Act 2003now  provides that the Commissioner has the following functions: “(c) to receive and investigate complaints by small businesses regarding unfair market practices or commercial dealings, and provide alternative dispute resolution between the parties involved in the complaint;” Arguably there was always some debate over what “unfair market practices” covered, and the Commissioner has always been cautious in interpreting the ambit of that phrase. Those concerns have now been placed beyond doubt by the amendment, which now also incorporates “commercial dealings”. This would now seem to include the capability of the Commissioner to investigate virtually any complaint touching upon the operation of a small business, which could even include commercial debt issues. Whereas previously the power of the Commissioner was limited to mediation, that power has now been extended to include all forms of alternative dispute resolution, namely, conciliation, arbitration, assisted negotiation or facilitated meetings. In relation to another amendment the Minister for Small Business, Mr Russell Northe noted in a recent press release: “The Bill extends the Commissioner’s jurisdiction to resolve disputes between small businesses and local councils, state government departments and agencies as well as more broadly covering commercial dealings and not just unfair market practices”. The changes will no doubt be welcomed by small business as the door has now been opened wider to use a relatively inexpensive forum (currently $195 per party) where attempts can be made to resolve disputes fairly quickly (up to now by mediation) and before having to commence expensive, time-consuming and stressful litigation. In the 2012-2013 at least 80% of matters heard at the Office of the Victorian Small Business Commissioner (VSBC) were resolved. There is now every good reason for small business to use that facility.   Jonathan Kaplan is an Accredited Specialist in Mediation and is on the panel of mediators of the...

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Sale of Business

During December 2013 the Federal Government advised that it intended to remove the current GST free treatment for the sale of a going concern (and farm land) “during 2014”. The intention is to provide a “reverse charge” arrangement. The reverse charge mechanism provides that the parties will be able to agree for the purchaser to be responsible for payment of GST on the sale and purchase of businesses as a going concern as if it were the vendor, allowing the purchaser to claim an input tax credit in the same period, if it is entitled to do so. Should the parties not agree, the vendor will need to account for GST in the usual way. It is anticipated that the impact on the purchaser under the reverse charge procedure will be neutral as it will be entitled to an input tax credit for the GST paid at the same time as the GST is payable, requiring no payment. The qualification for the reverse charge mechanism is that:  the test for a going concern will need to be satisfied (it is understood that the test will berelaxed requiring the supplier to only supply “substantially” all things necessary for the going concern); and the purchaser must be registered or required to be registered for GST Unless these criteria are satisfied the reverse charge mechanism will not be available and the vendor will be liable for any GST. It is necessary to highlight these potential changes because where contracts for the sale of a business are prepared consideration should be given to including a special condition in the contracts to cover the possibility of changes becoming effective before the settlement date. The advice and information contained in this news blog is of a general nature only and is not intended to constitute or replace professional...

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Website Launched

 Jonathan Kaplan, Lawyer and Mediator, has launched his new website designed by 4Cubed Web Design.

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