Dispute Resolution and Legal Ethics Insights

Mediating Property Settlements Michael Fellows, Sir George Kneipp Chambers, Townsville

It is primary dispute resolution! Can I say goodbye to the dog?

Risks for Lawyers Rule 4.01 compliance with pre-action procedures Rule 4.03 reasonable and genuine attempt to settle Rule 4.04 The Court may take into account the involvement of a legal practitioner in a party s failure to comply with rule 4.10, 4.02, or 4.03 when considering whether to make an order for costs.

The ethical obligation The Solicitors Conduct Rules at 4.1.2, 7.2, 22 and 34 Rule 34 Correspondence which grossly exceeds the legitimate assertion of the rights and entitlements of the solicitor s client and which misleads or intimidates the other person

WCPGW what could possibly go wrong! LSC v Cooper I have advised my client to instruct me not to respond to any more of your correspondence. It just seems to me that every time you have got no work to do you return to [the wife s] file because there is plenty of money there to pay your legal fees.

This is our final offer (but it wasnt) Ambrose Bierce the hardest tumble a man can take is to fall over his own bluff $400,000 then $300,000, then $160,000

Ambit claims We are not mouthpieces the Conduct Rules Pre-action procedures at clause 6(1)(i)

Its always about the range Bargaining in legal and discretionary uncertainty The law of diminishing returns Risk management Wise compromise

Preparatory stuff Timing Availability of mediators, counsel, valuers, accountants and so on Tax consequence Division 7A, CGT Finance to effect a settlement The balance sheet

The usual rant about disclosure Come to grips with what is truly relevant Myers v Elman (1940) Pre-action procedures Cluse 6(5) If a client wishes not to disclose a fact or document that is relevant to the proceeding, a lawyer has an obligation to take the appropriate action; that is, to cease acting for the client

Case study disclosure WCPGW? Husband s balance sheet debts of $1.2M in a company Revised to $900,000 on eve of mediation Correspondence from wife s solicitor ignored Mediation commences - what happened next ......

Roxy (and other emotional stuff) Grunseth & Wighton [2022 Full Court] It is more difficult in the case of a family pet of limited financial value. If the ownership is contested, there is much to be said for each party making a blind bid for the pet, with the highest offer accepted and taken into account in dividing the property

Support persons Bargaining in the shadow of the tribe Help of hindrance 3 week old baby WCPGW? Undertaking as to confidentiality

Taking notes during the mediation There is no transcript WCPGW? Family Law Act s. 79A Notes taken during mediation, and even legal advice given may be disclosable in subsequent litigation

Compulsory offer WCPGW? Rule 4.11 Was there a settled balance sheet? Pennisi v Pennisi (1997) Paladin v Paladin (2020)