Q&A Preview for “Abuse Law Practice and Reform: Navigating Evidence, Redress and Resolution” Program

The panel will discuss a number of topics, including:

• Managing present and continuing uncertainty in this area – how does this impact on the resolution strategy?

• How cases are prepared from the Plaintiff and Defendant viewpoints

• When is the right/best time to mediate?

• Have apologies taken a back seat and if so, why?

• The continued importance of a “trauma-informed” approach in an area that has become increasingly litigious

• Barriers to resolving at mediation and factors which promote the likelihood of settlement

The Mediators to Tom & Jackie: In the years following the 2016 Royal Commission, most matters appeared to settle before hearing or even before litigation. In recent years, however, we have seen much development in the case law as well as statutory reform. How do you manage matters when there is uncertainty in the area?

Tom: Uncertainties are inherent in all litigation. It is imperative that these are advised to the client in a comprehensive way, so that client is making an informed decision (eg to settle or not), at all times. Tom will elaborate on some examples.

Jackie: Defendants often consider the risk of changing laws and the impact these have on the possibility of “re-visits”; ie when application is made for a settlement or judgement to be set aside and the case re-opened.

Naomi: Whilst there can be clear benefits to attempting to resolve cases early in the claim, my observations are that successful resolution relies heavily on goodwill between parties and sufficient discovery for each party to evaluate their risk.

Tom: I agree. My approach is that, from a Plaintiff's perspective, it's important to have all of the evidence gathered before attempting settlement, to manage risks effectively. Managing your client’s expectations is important, because unfortunately it takes some time to take comprehensive instructions and gather contemporaneous evidence, as well as expert evidence.

This will be elaborated on, with reference to Tom’s experience in handling abuse cases and claims on behalf of the Stolen Generations.

Jackie: In my experience, Defendants are far more likely to settle cases where the Plaintiff’s evidence is detailed and factually in line with contemporaneous documentation (eg re dates, etc).

Jackie will also discuss the factors influencing the timing of mediation, including the quality of the evidence provided by the Plaintiff and the need for thorough investigations, which can affect the readiness for early mediation.

Karen: Some common features I have observed, of matters resolving successfully at mediation, also include collegiate discussions between the legal teams where concessions are made appropriately, and the negotiations do not commence at opposite ends of the spectrum.

Tom: I feel it is important to make offers grounded in realism, to build trust in the process – of your client and of your opponent. In a specialised area of the law, it is also important to establish and maintain a good reputation with your colleagues, ie there is a need for consistency and honesty in negotiations. Any use of misleading language can damage relationships between parties and affect future negotiations.