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Confidentiality is an essential part of any successful mediation, but it is possible that a person participating in a mediation might waive their right to confidentiality, even if they do not mean to do so. This risk explored in the case of  Missingham v Shamin [2012] NSWSC 288 (21 March 2012)

Mr Missingham was the President of the Australian Kung-Fu (Wu-Shu) Federation.  He issued defamation proceedings against Dr Koroleva who was a former member of the Federation.

Mr Missingham and Dr Koroleva each brought their lawyers and a support person to their mediation.  Dr Koroleva’s support person was her husband, Mr Shamin.  The dispute was settled and the parties and Mr Shamin signed a Deed agreeing to keep the settlement confidential.  The deed also specified the form of public statement which the parties were entitled to make following the execution of the deed.

Shortly after the mediation, the defamation proceedings were mentioned in Court so a Notice of Discontinuance could be filed. There was a statement in open court that the proceedings had settled at mediation and that “the court was informed about arrangements in respect of costs orders”.

On the same date, a comment about the case was posted on a website forum called “BLITZ Australasian Arts Magazine” by a contributor identified only as “ffsguy”.

Although the Court never determined who “ffsguy” was, Mr Shamin apparently believed that Mr Missingham was responsible for the post.  In response, Mr Shamin an extract from a letter about the case on the same website.

Mr Missingham’s solicitors demanded that Mr Shamin’s post be taken down.  After receiving that demand, Mr Shamin took down the extract but replaced it with the whole letter.  Mr Missingham applied to the Court.

Mr Shamin raised four arguments  Three of them were quickly dismissed, but the Court considered his fourth argument, which was essentially that

• details of the settlement had been referred to in Court by Justice Brereton when he gave leave to file the Notice of Discontinuance,
• Justice Brereton’s judgment was posted n the Court’s website
• Mr Missingham had not applied for a suppression order
• Therefore Mr Missingham had waived his right to confidentiality.

The Court held that failing to seek a suppression order did not mean that Mr Missingham had waived his right to confidentiality,  but did so on the grounds that a suppression order would have been hard to obtain under the relevant NSW legislation. This suggests that in different circumstances, a party whose confidential information is published through no fault of their own may be found to have waived their rights by failing to seek a suppression order.

The Court also found that:

• publication of details of the settlement on the Court’s website was a limited publication.
• There was no evidence that it has been accessed on a widespread basis since it was posted.
• Mr Missingham’s right to confidentiality should not be lost due to a limited publication in which he played no part.

The Court therefore:

1. Granted an injunction suppressing contents of the Deed.
2. Awarded damages of $10 for breach of confidentiality.
3. Awarded costs on an indemnity basis.

In summary, if you want to keep a settlement confidential, the best way to protect that confidentiality to include this as part of any written settlement agreement.  Even if you do this, you need to act immediately if there is any breach of that confidentiality. Once the information is in the public domain the Court will probably not grant an injunction, and it may be difficult to recover any significant amount in damages.

 

 

In the first half of 2020, there were suddenly a lot of articles about the benefits of Zoom mediations.  We can all understand why this happened.  We were in lockdown and if people did not like the idea of Zoom mediations, then mediators wouldn’t have much to do until the covid lockdowns were over.  If we had known how long those lockdowns would last here in Victoria, there would have been even more of those articles.

Now that we’re allowed to get everyone together in the same room again, this is a good time to think about whether Zoom mediations are the way of the future or just something that we had to do for a while.

A few mediators I know were very happy to be able to get back to in person mediations.  The reasons are obvious enough:

• As a mediator, it is vitally important to build rapport with all parties and to ensure that they feel heard.  This is so much easier to do when you’re in the same room.
• A great benefit of mediation is that it causes people to focus on the dispute at hand and to confront the fact that if the dispute is not resolved, they will have to deal with it again when the matter comes to Court.  It is easier to get people to focus on this when they are in the same room as the other party.  It’s easier for people to feel one step removed from the dispute if they are at home in front of a computer that can be turned off at any time.
• In practical terms, it is much easier to get an agreement written up, finalised and signed when everyone is in the same building.

Even though the benefits of in person mediation are well known, there are some situations where using Zoom will be as good, or better, than an in person mediation.

There have been a number of studies on the effect of stress on parties involved in mediation.

This very useful article from Jill Tanz describes how stress causes the human body to produce adrenaline and Adrenaline levels drop fairly quickly after a reaction to stress, but cortisol levels are likely to remain high for several hours after a stressful event, especially when there are multiple stress triggers.

Adrenaline causes effects like an increased heart rate and sweaty palms, which means we’re usually aware if it’s effect.  We are less likely to be aware of an increase in cortisol levels, because the signs are not as obvious.  High cortisol levels can have a number of negative effects including:

• Parties, and their lawyers, become more likely to misinterpret the other party’s intentions and to perceive the other side’s behaviour as hostile
• Parties are more likely to overreact to an offer that they perceive as unreasonably high or low
• Men with high cortisol levels often become more fixed in their positions, and they are less likely to be able to see things from the other side’s else’s perspective

Stress triggers in mediation can include being in an unfamiliar setting and having to come face to face with a person with whom you have a history of conflict.  If a party is at home and not in the same room as their opponent, the problems caused by high cortisol levels are less likely to arise.

There is also some evidence  that zoom mediations may be more effective when dealing with people who have  high conflict personalities.  If a dispute gets to mediationm, it is likely that at least one of the parties involved has a high conflict personality, and it is possible that everyone involved in the dispute might fall into this category.

The benefits of a Zoom mediation for people with a high conflict personality include:

• People tend to behave better when they are on camera, particularly when they can see themselves on screen
• Zoom offers tools for dealing with situations where conflicts are escalating, such as quickly moving parties into separate virtual rooms, or, in extreme cases, temporarily muting that person.
• Even if a person’s behaviour is not improved, the other party is less likely to be affected by it. Aggressive behaviour is less likely to trigger a spike in cortisol levels when the person witnessing that behaviour is not in the same building.

In most cases, I prefer to run mediations in person, but when dealing with people with high conflict personalities, or cases where there has been a long history of conflict or threats have been made, a zoom mediation is often the safest and most effective approach to resolving the conflict.

Before arranging a mediation, take to the mediator about the issues and any concerns that you may have about being in the same room as the other party.  This will make it easier for the mediator to help the parties to find the best format for the mediation, which means you will have the best chance of resolving the dispute and spending the time and money you save on something far more enjoyable.

If you have questions about the best way to approach mediation, you can ring me on 0417 017 053.

Happy New Year.   January can be a quiet month while everyone is on holidays, so this is a good time to remind you to check that you are complying with the current rules about director identification numbers.

Directors of all companies, including charities that are companies or Aboriginal and Torres Strait Islander corporations must apply for a director ID.

New directors are required to apply for a director ID within 28 days after they are appointed.

Directors who were appointed before 31 October 2021 were required to apply by 30 November 2022, so if you do not currently have a director ID, you should seek legal advice as soon as possible.

Visit the Australian Business Registry Services (ABRS) for more information about who needs a director ID, and how to apply.