Appropriate dispute resolution - Mini-scenario 2

Facts

Two siblings, Bec and Sarah, are in conflict over their mother’s estate, being about $1 million in net assets. Various factual disputes have frustrated the conflict. Bec was her mother’s primary carer for the last year. However, Sarah provided financial support for her mother for many years prior to that. Sarah has also felt excluded over the last year; meanwhile Bec feels like she was the family ‘rock’, providing support to her sister when her father recently passed away. Both have unreasonable expectations, expecting a 75:25 split of the estate, each in their own favour. They decide to litigate, and the conflict comes before you.

1:Which of the following is not a potential benefit of ordering a judicial resolution conference?
A)

Judicial officers performing duties in connection with a judicial resolution conference have the same protection and immunity as a judge of the Supreme Court in their performance as a judge

Correct

 

B)

Judicial officers are able to assist lawyers handle difficult clients with unreasonable expectations

Incorrect

 

C)

Judicial officers can capably give advice about various things such as the likely trial date, the possible costs of trial and what further directions might be needed for trial preparation

Incorrect

 

D)

Judicial skills such as observation, patience and legal knowledge make judicial officers well-equipped for mediations of this kind

Incorrect

 

Facts

You order the parties to attend judge-led mediation. Unfortunately, the mediation does not proceed as well as was expected. A heated argument occurs, culminating in Sarah exclaiming, ‘Yeah, so I fabricated some of those financial records – so what? A 75:25 split may not be fair, but we both know 50:50 would be completely fair’. The mediation soon ends unsuccessfully. Bec wants the evidence of what Sarah said admitted in the proceeding as an admission that Sarah should not be entitled to more than a 50:50 split of the estate.

2:Is this evidence admissible?
A)

Yes, as it is evidence that satisfies the test of relevance, as it is probative evidence about Sarah’s belief in her entitlement in the estate

Incorrect

 

B)

Yes, as the interests of fairness and justice require that the admission be admitted into evidence in the proceeding, as the admission is probative evidence about Sarah’s belief in her entitlement in the estate

Incorrect

 

C)

No, as evidence of things said or done at a judicial resolution conference are generally not admissible, and the interests of fairness and justice do not warrant an admission of liability to be admitted, as that is precisely the what the confidentiality of mediations are intended to encourage

Correct

 

D)

No, as the mediator is not compellable to give evidence in any proceeding of anything said or done arising from the conduct of the judicial resolution conference

Incorrect

 

3:Bec wants the evidence of what Sarah said admitted in a separate proceeding, in which the cause of action is fraud. Is the evidence admissible in that proceeding?
A)

Yes, as the evidence would satisfy the test of relevance in that proceeding, as it is probative evidence about Sarah’s fraudulent conduct

Incorrect

 

B)

Yes, as although evidence of things said or done at judicial resolution conferences are generally inadmissible, the interests of fairness and justice require that evidence of fraudulent conduct be admissible in proceedings alleging fraud

Correct

 

C)

No, as evidence of things said or done at a judicial resolution conference are generally not admissible, and the interests of fairness and justice do not require admission of this evidence, as confidentiality of mediations is intended to encourage disclosure

Incorrect

 

D)

No, as the mediator is not compellable to give evidence in any proceeding of anything said or done arising from the conduct of the judicial resolution conference

Incorrect

 

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