Phone: (07) 3181 5560Level 27 Santos Place
Mobile: 0437 007 27132 Turbot Street
Em: ISBANE Q 4000
Mail to:
PO Box 316
Mooloolaba Q 4557
Dear Colleagues
Re: [INSERT NAME OF MATTER]
I confirm that I have been appointed as mediator in this court ordered mediation, scheduled for [INSERT DATE] at [INSERT TIME].
I request that you, as the respective solicitors for the parties, familiarise yourselves with, and ensure compliance with, the contents of this letter. Please also ensure that any counsel engaged by you is similarly familiar and complies.
Unless you advise me to the contrary, promptly and in writing, I will assume the contents of this letter are accepted by the parties.
- Costs agreement, standards and scheme limitation:
I proceed on the basis I am being retained as mediator by you as the respective solicitors for the parties. Insofar as the Legal Profession Act 2007 (Qld) applies to my appointment, this letter constitutes my offer to enter a costs agreement with you.
There is no scale of fees which applies to my appointment. Further:
- I am bound by the ethical and cognate standards set out in the Legal Profession Act2007 (Qld) and the 2011Barristers’ Rule.
- my immunity from suit under common law, for work done out of court and affecting the conduct of a matter in court, applies to my appointment.
- as a Class A Ordinary Member of the Bar Association of Queensland, my professional liability is limited by a scheme approved under the Professional Standards Act2004 (Qld). In this regard, see the statement to that effect at the base of the first page of this letter, and see also the Professional Standards Council website at further information. Note there are exceptions to the scheme’s operation specified in section 6 of the Professional Standards Act in respect of a Queensland claim.
- Court ordered mediation / Private Mediation
If Court Ordered:
If this mediation is court ordered and you have not already done so please provide me with a copy of the filed court order.
Being a court ordered mediation, no mediation agreement is required. However, I draw your attention to the following applicable provisions:
- Chapter 10 of the Family Law Rules (Cth) 2001;
- Section 131 of the Evidence Act (Cth).
If Private (Non-Court Ordered) Mediation:
If this mediation is not court ordered but rather is consensual, a mediation agreement will be required to be entered into with me which incorporates the relevant terms of the Family Law Act (Cth) 1975. A copy of the form of mediation agreement is follows at the bottom of this email. Please peruse it carefully.
Please ensure the mediation agreement is signed by you and your client(s) and returned to me by 5 pm on the fifth last working day (that is, a full week) prior to the day of the mediation. It will suffice if the respective solicitors sign the document and forward it separately as a counterpart. In any event, you, as solicitors, must sign the agreement.
Unless all parties comply with this requirement, the mediation will be deemed cancelled.
- Mediation Arrangements:
(a)Date and duration of mediation:
The mediation will take place on [INSERT DATE] commencing at [INSERT TIME].
The duration is [INSERT] a day (not exceeding [INSERT] hours). This includes any agreed breaks. I can extend this timeframe if requested, with such request to be implied or explicit, including on the day.
(b)Venue for mediation:
The venue for the mediation is [INSERT ADDRESS].
Any venue costs will be met directly by the parties, except if the mediation is conducted in my chamber rooms (if available and the parties are sufficiently limited in number).
(c)Mediation brief:
Please deliver a brief to me no later than the fifth last working day before the mediation.
In particular, the brief should include all salient documents, filed or otherwise, which the parties, by agreement or by court order, wish me to read before the mediation.
The documents in the brief should be printed on single-sided paper, should not exceed two lever arch folders in volume, and should be paginated and indexed.
(d)Procedure at mediation:
On my website I have posted an article about the proposed mediation structure and process, which must be provided to the parties prior to the mediation. I require confirmation that the parties have read the article before proceeding with the mediation. The article is located at:
In terms of my expectations of lawyers and conduct of all participants generally the above article provides further information. I require confirmation from the lawyers that they have also read that article as it pertains to their role within the mediation.
- Directions for mediation:
(a)Outline:
Three (the claimant) and one (the respondent) clear working days prior to the mediation date, the parties must serve on each other, on a without prejudice basis, an outline (or position statement), not to exceed 10 pages, of essential arguments. Each outline/position statement must include a schedule of the relief which the party considers apposite on the facts. Where possible, each outline/position statement should include the party’s offer to the other party.
In turn, the outlines/position statements and the accompanying schedules must be provided to me contemporaneously. The parties may, by agreement, enlarge or shorten these delivery times or vary the scope or particulars of the outlines/position statements. It is essential that I am advised of any such changes contemporaneously.
Also, it is essential that the parties have read and are familiar with the outlines/position statements and the accompanying schedules prior to the commencement of the mediation.
(b)Offers and decision maker:
Each party should be in a position to make an offer, irrespective of what it may be, at the latest, by the end of the party’s opening at the mediation. (As noted above, it is preferable that each party make an offer in the prior delivered mediation outline/position statement.)
Each party, or a person authorised to make a decision on behalf of each party, must attend the mediation.
- Mediation fees:
(a)Rates:
My professional charges for the mediation (“my fee”) will be $3,850.00 (being $3,500.00 plus GST of $350.00). The parties must meet any external venue fee.
My fee includes any time spent in respect of my appointment as mediator, comprising all reading of the mediation documents prior to the mediation, the mediation itself, and prior and subsequent administration.
Any additional time in reading, (i.e. where the brief is comprised of more than two lever arch folders, printed single-sided) or in an extended mediation hearing, with the duration beyond the period allocated (consent thereto evidenced by continued participation therein) will incur an additional fee charged at a rate of $400.00 plus GST per hour (“additional fee”).
This fee ordinarily include my traveling to the mediation location from my chambers in Brisbane. Where my travel is likely to exceed 3 hours an additional fee charged at a rate of $200.00 plus GST per hour will be charged (“travel fee”).
(b)Shares:
The parties will bear my fee, and any additional fee, in the following shares:
- [INSERT].
- [INSERT].
Each party is liable to me only for its share of my fee and any additional fee (i.e. the obligation is several, not joint).
(c)Payment:
I am treating my appointment as a retainer by the respective solicitors, with each being responsible for their client’s share of my fee and any additional fee.
My fee and any additional fee is payable by the respective solicitors within 21 days of the date of my invoice.
(d)Cancellation:
If:
- one or more of the parties cancels or postpones the mediation, irrespective of fault, or the matter settles, thereby dispensing with the mediation; and
- the same is communicated to me, or to any member of my staff, later than 5.00 pm on the third last working day prior to the mediation, then:
in addition to any then expended reading or preparation time, a fee based on 1 ½ hours preparation time calculated at the rate of $400 per hour ($660.00 being $600.00 plus GST of $60.00) is payable by the parties in accordance with their respective shares. This fee is payable by the respective solicitors within 21 days of the date of my invoice.
- Conclusion:
Any party who requires clarification of, or who does not accept, the contents of this letter must advise me and the other promptly and in writing.
Yours faithfully
Bruce Thiele LLB
MEDIATION AGREEMENT
RE: [INSERT NAME OF MATTER]
This agreement is made between Bruce Thiele ("the mediator"), the parties to the above proceeding or dispute ("the parties") and their respective solicitors (“the solicitors”).
The agreement is:
1There exists a dispute which is described in the court pleadings or claim papers exchanged between the parties (“the dispute”).
2The parties wish to resolve the dispute with the assistance of a mediator.
3The parties have agreed to the appointment of the mediator to assist in such resolution.
4The solicitors retain the mediator to mediate the dispute.
5The following provisions are incorporated as terms of this agreement:
(a)Chapter 10 of the Family Law Rules 2001 (Cth)
(b)Section 131 of the Evidence Act 1995 (Cth).
6The parties will reasonably attempt to resolve the dispute.
7The mediation will ensue at a venue to be reasonably agreed between the solicitors and the mediator. The parties will bear any venue costs.
8The parties will conduct the mediation in private. Only the parties to the dispute and their legal representatives (the solicitors and any counsel engaged) may attend the mediation unless the mediator and the parties otherwise consent.
9The parties, the solicitors, and the mediator will keep confidential all things said or done during the mediation process, whether orally, in writing or by conduct, unless the parties otherwise agree.
10The mediation will be conducted on a "without prejudice" basis, that comprising:-
(a)the prior exchange of mediation outlines or other documents under this agreement or otherwise upon the mediation;
(b)anything said or done by the parties, the solicitors or counsel at or upon the mediation;
(c)the views expressed or suggestions made by the mediator or any party in respect of a possible settlement of the dispute;
(d)proposals for settlement of the dispute made by the mediator or any party;
(e)the fact that any party has indicated willingness to accept a proposal for settlement made by the mediator; or
(f)notes or statements made by the mediator.
11In advance of the mediation, the parties will serve mediation outlines as the mediator considers appropriate, and will provide copies of such materials to the mediator.
12Save for material identified as "Confidential - for the attention of the mediator on behalf of the named party", which may be submitted to the mediator by any party, the parties agree to nominate one of them to prepare and submit to the mediator on behalf of all parties one copy all of the material intended to be relied upon by the parties and to provide an index of that material to each of the other parties. Such material is to be delivered to the mediator no later than 5 working days prior to the date fixed for the mediation.
13The parties will not be bound by any comments, suggestions, or recommendations of the mediator.
14Any agreement between the parties reached at or upon the mediation, in relation to the dispute or any discrete issue therein, is not binding on any party unless and until it is recorded in a written agreement signed by the parties or their legal representatives.
15The mediation may be terminated:-
(a)by the respective solicitors for the parties giving written notice to the mediator that they have resolved their dispute; or
(b)by the solicitors for any party to the dispute giving notice (written or oral) of termination of the mediation to each other party and to the mediator; or
(c)by the mediator giving notice (written or oral) to the respective solicitors that:
(i)the terms hereof have not been complied with; or
(ii)further pursuit of the mediation is not justified or desirable and that the mediator has accordingly ceased to act as a mediator.
16If the dispute is not resolved by the agreement reached at the mediation, the parties agree that the costs and expenses associated with the mediation (including the mediator's fees) shall be each party’s costs in the cause of the present or any future court proceeding between the parties concerning the dispute.
17The mediator will be paid the mediation fees in the amounts and at the times set out in Schedule 1. The terms therein are operative terms of this agreement.
18The solicitors agree to pay such mediation fees.
19Neither the parties nor the solicitors will require the mediator to give evidence or produce any document in any legal proceedings concerning the dispute, other than legal proceedings brought to enforce or challenge the validity of any agreement arising from the mediation.
20The parties agree the mediator is not a necessary party to any litigation or arbitration between the parties relating to the dispute or any related dispute between them.
21To the extent which the law permits:-
(a)any liability of any nature whatsoever of the mediator, including breach of duty of care (if any) in contract or in the tort of negligence, in respect of any matter arising out of this agreement or in any way connected with this agreement or anything done or omitted to be done under or in connection with the agreement, or at or upon the mediation, is excluded;
(b)the express terms of this agreement contain the whole of the obligation of the mediator relating to this agreement and the mediation. Any obligation of the mediator which might otherwise be implied is excluded.
22In consideration of the above, the mediator agrees to mediate the dispute for the period specified in Schedule 1.
SCHEDULE 1
MEDIATOR'S FEES AND EXPENSES
(a)The mediation hearing is estimated to take 1 day(not longer than 7 hours). Any additional time spent will be charged and payable at a rate of $400.00 per hour plus GST (then becoming part of the fee). The venue cost will be met by the parties unless conducted in the mediator’s chamber rooms (if available).
(b)The mediator will be paid a fee of$3,850.00 (being $3,500.00 plus GST of $350.00) (together “the fee”). The fee includes prior reading and preparation, the mediation hearing and mediation administration. The fee is struck on the basis that the documents received do not exceed two lever arch folders in volume (contents printed on one side) and the mediation is to ensue on the date appointed for 1 day (not longer than 7 hours). Any additional time spent (in reading a larger volume of documents, or in extended mediation duration (consented to by continued participation therein), will be charged and payable at a rate of $400.00 per hour plus GST (“the additional fee”). The fee includes the mediator’s travel from chambers to the mediation location. Where travel time exceeds 3 hours duration, travel time will be charged and payable at a rate of $200.00 per hour plus GST (“the travel fee”) for such travel time exceeding 3 hours.
(c)If the mediation is cancelled or postponed by one or more of the parties, irrespective of fault, or the matter settled thereby dispensing with mediation, in either case with the same communicated to the mediator or the mediator’s staff later than 5.00 pm on the third last working day prior to the appointed mediation date then, in addition to any then expended reading or preparation time, the fee will be $660.00 ($600.00 plus GST of $60.00) being an assumed 1 ½ hours preparation hearing time on the mediation hearing date calculated at the said rate of $400.00 per hour.
(d)The solicitors are retaining the mediator for the mediation and agree to pay the fee (and the additional and travel fee, if any) in respect of the parties. The proportionate liability for the fee (and the additional fee, if any) is as follows:
- [INSERT NAME OF PARTY] – 50% share
- [INSERT NAME OF PARTY] – 50% share
Such fee liability is several, not joint, in respect of such share.
(e)The fee (and any additional fee) will be paid within 21 days of the mediator issuing an invoice to the solicitors.
NB - This agreement is signed by the solicitors for the parties on behalf of the parties and on their own behalf:-
1.Name of Party: ………………………
Status of Party:………………………
Signature of Solicitor for Party : …………………………..
Date:
2.Name of Party:………………………
Status of Party:………………………
Signature of Solicitor for Party:…………………………..
Date:
3.Name of Party:………………………
Status of Party:………………………
Signature of Solicitor for Party: …………………………..
Date:
4.Name of Party:………………………
Status of Party:………………………
Signature of Solicitor for Party: …………………………..
Date:
5.Name of Party:………………………
Status of Party:………………………
Signature of Solicitor for Party: …………………………..
Date:
6.Name of Party:………………………
Status of Party:………………………
Signature of Solicitor for Party: …………………………..
Date:
The mediator:______
Dated: / /