Mediation by Robert Fenwick Elliott

I was accredited a mediator by CEDR many years ago and by the Institute of Arbitrators and Mediators Australia (now the Resolution Institute) in November 2006.

Although I have mediated many disputess during my career as solicitor and then barrister (i.e. prior to January 2023), acting as a mediator was not my primary focus during that period. Far more often, I have been involved in mediations and other forms of ADR on behalf of a party, typically but not always successfully obtaining a resolution.  The aggregate amount in dispute in the matters that I have been involved, either as mediator or as advisor to a party, runs to some hundreds of millions of dollars.

As a mediator I have yet to fail to resolve a dispute that has been referred to me.  I do not expect that record to last indefinitely now I am free to accept mediation appointments more frequently.

Mediators’ approaches to the task of mediation vary between facilitative and evaluative. Purely facilitative mediators make a point of never expressing any opinion at all as to the merits or prospects of success of either party’s legal case. On the other hand, evaluative mediators (especially retired judges) feel free to pronounce  the basis upon which they think the partiesshould settle based upon their assessment of the strength of those cases. Whatever may be the optimum approach in other areas of the law, my experience of many dozens of mediations in the construction and engineering sector is that the most successful strategy lies somewhere between these extremes. The parties, and even occasionally the lawyers, sometimes want to hear the mediator’s opinion of their prospects if they do not settle, particularly if the mediator is an experienced construction lawyer, and it is sometimes helpful carefully and prudently to express such an opinion, generally towards the latter stages of the mediation process. Further, I have seen a number of cases where the parties have been unable to reach agreement on the day of the mediation, but have asked the mediator then to provide a written but non-binding recommendation as to how the parties might sensaibly settle; in those cases, the parties have usually (not quite always) be prepared to accept such recommendation. Based on that experience, I am generally amenable to the non-binding recommendation process in such circumstances.