ACCforum: Mediation: the patient is alive and well - ACCforum

Jump to content

Page 1 of 1
  • You cannot start a new topic
  • You cannot reply to this topic

Mediation: the patient is alive and well

#1 User is offline   hukildaspida 

  • Advanced Member
  • PipPipPip
  • Group: Member
  • Posts: 3353
  • Joined: 24-August 07

Posted 20 February 2012 - 08:52 PM

MEDIATION
Mediation: the patient is alive and well
By Roger Chapman, lawyer, mediator, and dispute adviser

http://www.nzlawyerm...99/Default.aspx

My first reaction on reading Paul Sills’s recent article (“An alternative approach to mediation”, NZLawyer, issue 175, 16 December 2011) was that he must have had some bad experiences to make him express such gloomy views about the state of mediation practice. He argues that “established legal reasoning is the dominant force”, and that mediation differs little, if at all, from the judicial process in the way disputes are examined – in other words, that the dialogues which take place in mediation are principally rights-based. He goes on to propose a more collaborative approach which examines the parties’ true needs, explores creative, intuitive, and balanced outcomes, places responsibility for the outcome on the parties, and focuses on points of agreement and common ground.

Sills suggests that most parties in mediation find the process a negative experience for several reasons, some of which need closer scrutiny. But the heart of the problem, as he sees it, is that both mediators and lawyers assisting parties concentrate on logic and rational argument – that is, they behave like lawyers. This is one reason why he believes that lawyers and mediators have a narrow approach to disputes, and focus too readily on the monetary elements of any resolution.

How ill is the patient really?
Whether legal thinking is necessarily logical or rational is a debate for another day. But it does tend to be linear: it finds a supposedly appropriate starting point, and moves by more or less logical steps to reach a conclusion. That, after all, is how we as lawyers are trained to think. Lateral thinking seldom comes easily to us. And we are very much inclined to dismiss matters which do not figure in our linear chain of reasoning as irrelevant.

On the other hand, people commonly – perhaps usually – make decisions about their own disputes for reasons which have little to do with classical logic or legal thinking. Emotion, intuition, and a sense of what ‘feels right’ all play a significant part. Lawyers who do not understand these factors in decision making are unlikely to be as useful as negotiators for their clients as those who do. This is one of the reasons why when lawyers and judges train as mediators, they may have to unlearn, or at least put aside, some of what they learned as lawyers and begin exploring different ways of thinking.

Whether Sills is right to say that most, if not all, mediators have legal training is open to question. New Zealand lawyers showed little interest in mediation until about 20 years ago, but mediation has been practised in this country for much longer than that. It is not necessary to be legally trained to be a good mediator. Some would argue that lawyers may not make the best mediators. But it is possible to be an effective mediator despite being a lawyer.

Sills complains that mediations tend to focus on legal analysis, which seems to be another way of saying that the process concentrates on the parties’ rights and duties instead of looking at other issues which might better address the parties’ needs. He also says that settlements usually focus on the amount of money which is to change hands. There is a grain or two of truth in these complaints, but they seem to me to be exaggerated.

The parties commonly have in mind what may happen if they cannot agree. Will the dispute have to go to some form of adjudication? Whose version of the facts will the adjudicator accept? What is the likely outcome? These matters usually need to be aired, if only to educate the parties about the potential strengths and weaknesses of their cases. Their beliefs about the answers will probably affect both the way they negotiate and the outcomes which they are willing to accept. But a wise mediator does not normally allow this debate to become the focus of the mediation. Most parties and their advisers can readily accept that it is unnecessary to answer these questions to resolve their dispute, and seldom productive even to try.

In nearly all of the disputes which I have mediated or in which I have acted for a party, the legalistic debate which Sills deplores has occupied little time and been very much a secondary matter. Perhaps things are done differently elsewhere, but when Sills argues that supposed ‘best practice’ currently involves – among other things – reluctance on the part of parties and their advisers to concede on polarised factual positions, my experience suggests that he is tilting at windmills.

Do mediations focus too much on the money? Counsel representing entities whose apparent role in the dispute is confined to writing cheques (insurance companies are an example) may say that their clients are interested only in the money – meaning the cheapest possible settlement. Such statements do not always ring true. It sometimes turns out that the insurer is concerned about other matters: for example, how will a particular settlement sit with the insured? What precedent may a settlement be treated as setting?

Lawyers (and sometimes their clients too) tend to think about disputes in money terms for many reasons, including the following:

That is the way in which they have always thought about disputes;
If the dispute goes to court, the decision is likely to be expressed purely in money;
An offer expressed in terms other than money may be difficult to value;
Positional bargaining – the kind of negotiating which we do when we are buying a house, and which we all know – is easy, particularly when the only question is “How much money will I receive or have to pay?”.

Disputes that really are only about money can be difficult to mediate because trade-offs which could form part of the settlement are difficult to find, and positional negotiating becomes hard to avoid. But in my 25 years’ experience of mediation, these are relatively few and far between. A dispute which appears on the surface to be concerned only with money frequently turns out on closer examination to involve emotional, psychological, strategic, or other issues which figure in the outcome.

The article suggests that the test commonly used to measure the success of a settlement is that all parties are unhappy with the outcome. Am I alone in thinking that this is no more than an aphorism habitually trotted out by lawyers over many years as a rather feeble joke? Only a strangely unambitious mediator would, I think, treat this as the best target at which to aim. On the contrary, most of the mediators with whom I have worked look for creative outcomes, and try hard to help parties achieve settlements which meet their needs to the greatest extent possible.

Sills argues that we need to do better to identify the cases that are suitable for mediation. I have recently endorsed this view (“Mediation: Are we getting things right?”, NZLawyer extra, edition 36, 14 October 2011), and there is no need to continue the discussion here. But the new, more collaborative paradigm for mediation that he proposes is not in fact new. It seems to be based on the problem-solving model advocated most famously by Fisher and Ury in Getting to YES: Negotiating Agreement Without Giving In (Houghton Mifflin, 1981) and Getting Past NO: Negotiating With Difficult People (Bantam, 1991), with which all trained mediators – and many lawyers – should be familiar. Mediators who have been trained by LEADR will immediately recognise the elements of the resolution process that Sills suggests.

It is easy to sympathise with his view that mediation should be tried earlier in the life of a dispute than it frequently is now. Experience indicates that there are cases where the lawyers could have done more to bring about an earlier settlement. But it is not clear that this is appropriate for every dispute. Some disputes are entrenched well before lawyers become involved, and may be ready for negotiated resolution only after time has passed and the approach of trial begins to make the parties reconsider their positions.

Conclusion
I agree with Sills that effective mediation involves collaboration, or at least recognition of the legitimacy of opposing views. We differ because he believes we are failing in that respect, whereas I think we are doing relatively well.

It would be foolish to suggest the patient could not be better. There are still too many lawyers who do not understand, or grasp the real potential of, mediation. But neither is the patient moribund. Many already use mediation in the ways which Sills advocates. The more this happens, the healthier and more effective the process will be.

Roger Chapman is a mediator and dispute management adviser. Until 2011, he was a litigation and dispute resolution partner at Johnston Lawrence, Wellington. He is a former New Zealand chair of LEADR, and is a member of the LEADR advanced mediation panel and the AMINZ panel of mediators. He can be contacted at [email protected]

NZLawyer magazine, issue 177, 10 February 2012
0

#2 User is offline   hukildaspida 

  • Advanced Member
  • PipPipPip
  • Group: Member
  • Posts: 3353
  • Joined: 24-August 07

Posted 09 March 2012 - 03:44 PM

http://www.nzherald....jectid=10790835

Disputes settled without going to court
4
comments

By Chris Barton
9:25 AM Friday Mar 9, 2012

Going to court is slow, costly and stressful, so many companies are embracing another way of settling disputes - hiring an umpire and thrashing out their differences face to face. Chris Barton reports.
Former judge Robert Fisher, QC: 'The courts need mediation and mediation definitely needs the courts.' Photo / Greg Bowker


It's a genteel version of a cage fight. Two people locked inside to battle until only one is left standing. Except in this case, the protagonists are fighting as a tag team with their lawyers. And also in the cage is a new-age umpire, a facilitator.

Within reason, anything goes once the door is shut. The parties are encouraged to entertain creative solutions to their troubles and the one-day session is designed to produce an outcome. Best of all, what happens in the cage stays in the cage.

Welcome to mediation - the environment businesses are turning to in droves to settle their commercial differences. "Droves" may be an exaggeration, because no one is keeping records of these confidential proceedings. The first rule of Fight Club is you do not talk about Fight Club.

"All lawyers and more so judges have to do something of a brain transplant when they switch to mediation," says former High Court judge Robert Fisher, QC, now working as both a mediator and arbitrator. "We are very used to a rights-based resolution of disputes - who the law says should win. You quickly realise it's not all about legal rights at all. Instead of imposing your view on the parties as judges are wont to do, you are really there to help the parties express their own views to each other."

He describes a typical mediation day - the first half spent exploring what would happen if the dispute were to go to court and the second half evaluating what's wanted, alternating with offers and counter offers, until everybody agrees on an appropriate compromise.

It's not for everyone. But anecdotally, mediation does seem to be on the rise. In 2010 there were just 301 defended civil hearings in High Courts across New Zealand - significantly down on the 424 in 2009 and the 433 and 373 in 2008 and 2007 respectively. The drop led some to wonder whether the High Court's civil jurisdiction was in a "death spiral". But by last year the number of defended hearings had bounced back with a vengeance to 479.

The chief High Court Judge, Justice Helen Winkelmann, acknowledges "cases are being referred to mediation in greater numbers by lawyers," but doesn't see the rise in "alternative dispute resolution" as necessarily a good thing. At the Arbitrators' and Mediators' Institute of New Zealand conference last year she noted there was a 66 per cent increase in High Court civil proceedings over the past five years, excluding insolvency proceedings, which have also increased. And that most cases never go all the way through the court; just 10 per cent of proceedings that start with a Statement of Claim are resolved through a judgment following a hearing.

"Cases settle in the shadow of the law" said Justice Winkelmann. She is concerned an "anti-litigation narrative" - overselling the benefits of mediation - might erode confidence in the civil court system. "Such an outcome is not in the interests of society as ultimately it will undermine the rule of law. "

In England, Master of the Rolls Lord Neuberger said something similar in 2010. He pointed out that consensual settlement has long been a part of litigation - whether it's a last-minute negotiated settlement at the door of the court, or an agreement reached during the long course of litigation. He questioned whether an ever-expanding role for mediation - "treating mediation as good and litigation as bad" - was consistent with a commitment to equal access to justice.

The pro mediation lobby, Lord Neuberger worries, is creating confusion, causing many to see the civil justice system as simply another provider of services to consumers." It's a view he believes is fundamentally, and dangerously, wrong. The justice system is part of our constitutional framework - part of government, not a service, says Neuberger.

It's an argument that links to Owen Fiss' 1984 essay Against Settlement. "Settlement is for me the civil analogue of plea bargaining: Consent is often coerced; the bargain may be struck by someone without authority," writes Fiss. "The absence of a trial and judgement renders subsequent judicial involvement troublesome ... settlement is a capitulation to the conditions of mass society and should be neither encouraged nor praised."

To which the growth industry of mediation collectively shrugs "whatever." Fisher doesn't accept mediation is in competition with the courts at all. " It's like saying eating is more important than breathing. I'd rather have both. The courts need mediation and mediation definitely needs the courts."

Civil litigation is still healthy in the High Court, he says. "It is the backstop to other forms of resolving disputes - the sword of Damocles in the corner of the room," helping everyone to concentrate.

Fisher says the market has spoken. "People have been going to mediation in their droves, not because of anything the mediation industry says, but because people find it suits their interest." He cites six drivers:

Speed: civilly litigated cases take 12-18 months through the court if fully defended. Mediation can happen as soon as the parties are ready.

Cost: mediation still has the costs of lawyers and other experts such as forensic accountants, but it's less than the courts.

Uncertainty: waiting 18 months to know about a win or loss of millions of dollars makes financial planning difficult.

Stress: mediation lessens the strain of litigation, with its drawn out battles of evidence and cross examination.

Control, aka party autonomy: parties control the procedure followed.

Confidentiality: unlike the court, mediation doesn't happen in the glare of publicity.

Fisher does agree there is a mismatch between mediation rhetoric and reality. He says some will tell you with a straight face that even in a litigation context, mediations are essentially a journey to self-discovery. "Along the way the parties learn much about their own emotions, their distorted view of the past, their relationship with each other, and where their own best interests truly lie. Thus equipped, they join hands in crafting a mutually pleasing outcome."

Such an approach is appropriate in disputes involving personal and family and emotional issues, says Fisher. Or in a commercial environment where there is a continuing relationship. But that's not the case in the majority of commercial disputes.

'One side wants as much money as they can get and the other side wants to part with as little money as it can get away with," says Fisher. "So to explore what is in everyone's best interests and what can be a win-win solution is all beating the air really." If the parties are never going to see each other again, and don't care if they leave with the other side brassed off with them, why not be up front about it?

Such a situation, says Fisher, calls for "an evaluated mediation" - a phrase many in the industry regard with horror because it sounds an awful lot like what a judge would do. "It is a bit like a mini trial except there is not going to be any judgement handed down at the end of it," says Fisher. He stresses the evaluation is done by the parties with the mediator chairing the discussion. A process that shows how the dispute looks like when laid out on the table.

Such evaluation skills are largely lacking from mediator training, says Fisher. As are skills to help with the psychology and tactics of bargaining - such as whether to begin with an extreme offer or whether such an extreme position will cause the other party to walk out or become hostile.

Ronald Pol, who advises corporates on controlling legal costs, has a word of warning. The promised flexibility and speed of arbitration and mediation compared with litigation is not always as straightforward as it seems. "The theory never quite managed to survive the impact of lawyers, and retired judges, acting as arbitrators and mediators - introducing many of the rules and practices of litigation," says Pol. Arbitration, in particular, he says, often becomes entangled with many of the rules and costly processes of litigation.

With complex processes creeping into arbitration and mediation, some companies now try to resolve disputes on a business-to-business basis whenever possible says Pol - by direct negotiation, and sometimes pragmatic trade-offs. In 2003 Wellington-based TeamTalk chief executive David Ware challenged Auckland-based MCS Digital boss Allan Cosford to an arm wrestle to settle a $200,000 dispute. Ware lost. "Sure, losing hurts," he said at the time. "But not nearly as much as paying lawyers' bills."

Mediation came to New Zealand in the early 1990s following developments in United States in the 1980s. The idea of introducing a neutral third party to the process and focussing on "interests and not positions" came from texts like Getting to YES: Negotiating Agreement Without Giving In. It advocates a facilitative model in which a non-interventionist mediator helps the parties find a "win-win" solution that meets the hidden interests of all concerned.

Other models followed, often with a therapeutic emphasis. Schools of thought included transformative mediation, focusing on the underlying problems in the parties' relationship, and narrative mediation,where the parties deconstruct competing stories and replace them with a third story of shared understanding. Lately, a pragmatic school has evolved advocating direct mediator participation and evaluative input.

In New Zealand the mediation profession is not regulated so anyone can hang out their shingle and call themselves a mediator. There are two professional bodies - LEADR NZ and the Arbitrators' and Mediators' Institute of New Zealand - each with its own rules and registration requirements.

Geoff Sharp left his legal practice in the late 90s to become a full time mediator focussing on commercial disputes. He describes his job as one of finding interests. The "silly orange story" explains. Two children were fighting over an orange. That's the position - both wanted the orange. Their mother intervened and gave half to each so both children got 50 per cent of what they wanted. Had she explored their interests - one child wanted the orange's juice and the other wanted the rind to make a cake - they both could have had 100 per cent.

"I was dissatisfied with black and white results," says Sharp. "Clients would sometimes win in court, but not feel they'd won because of cost and time." Becoming a mediator required a different mindset - learning not to be a problem solver. "I'm happy to accept there are a million answers and I'm shepherding the process."

Do mediators have tricks of the trade to coerce settlement? "The days of finishing at 2am in the morning are gone," he says. " I think everyone has got better at this, so we are no longer having mediation by attrition."

Most mediators, he says aim for a settlement rate of 80-90 per cent. "We talk about being a closer. Parties and lawyers want a closer. But resolution at all costs is a dangerous thing." He agrees most commercial mediation is about "helping parties get to a number". But outcomes that wouldn't happen in court are still possible. Like the chance remark in a recent mediation by a party saying he was going to sell up and move on when the dispute was over. "That was his interest and it led to the other party buying the business."

Tauranga lawyer Mark Beech works across the fields of litigation, mediation and arbitration. He sees the rise in mediation as directly related to contractual dispute resolution clauses. In the past such clauses would normally provide for a referral to arbitration, whereas today there will almost always be a requirement for mediation before going to court.

Beech stresses the role of counsel in protecting the client from undue pressure or power imbalances. He has been in late night mediations, but says such decisions to keep going are made only if the parties agree they are making progress. "I've never been in a situation where I've felt compelled to stay. Or when the mediation was putting undue pressure on my client, or the other side, to settle."

Beech says the choice of mediator is crucial - especially in disputes requiring specialised knowledge. Mediators also get known for their different styles - some being more interventionist than others. Some won't read anything before the mediation. Others insist on pre-mediation synopses of position and key contractual documents; and some are chosen for their settlement record, particularly in insurance cases.

Beech says most mediations "end up with someone giving a cheque or someone receiving a cheque." But some reach a different plane. He describes a mediation organised by the Health and Disability Commissioner where he was counsel for a Health Board. "The patient's life had changed as result of operation gone wrong and no amount of money was going compensate them for lifestyle choices they were now deprived of. On other hand the doctor was mortified and was reflecting on their future career." The mediation resulted in a compensation cheque, but also an apology, a commitment to do some retraining and to change certain systems within the Heath Board to avoid the situation happening again. "At the end you had the parties coming together saying: 'How can we make something good out of this really bad situation?' It was a very emotional day."

REACHING AGREEMENT

Mediation

Confidential and consensual, with an independent and impartial mediator facilitating negotiation between the parties to help them resolve their dispute. The mediator is not a decision-maker, but guides the process. If a dispute is resolved in mediation, a written agreement setting out the result is signed by the parties and is a binding contract.

Arbitration


A confidential process in which an independent and impartial arbitrator makes a decision, after hearing from the parties. The arbitrator's decision - called an "award" - is normally final, binding and enforceable by the courts.

What it costs

Mediator charges range from $3500 to $7000 a day, or $350-$500 an hour. Terms vary depending on the time provided for, pre-mediation and administration, travelling time and expenses.

In the high court

611.5 days: Median waiting time from the date of filing to a fixture for general civil proceedings, at the end of last year.

314.5 days: Median waiting time for a scheduled civil court hearing once the case is ready to be heard, at the end of last year.

484: Number of civil proceedings awaiting a hearing.

48: Civil proceedings awaiting judgment.

More information

* LEADR, the Association of Dispute Resolvers

* Arbitrators' and Mediators' Institute of NZ
By Chris Barton | Email Chris
0

#3 User is offline   not their victim 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 10829
  • Joined: 04-August 08

Posted 09 March 2012 - 05:19 PM

has anyone ever been offered mediation instead of having to go to DRSL...

I stated this recently in one of my complaints...why the sham of going into DRSL knowing full well acc had withheld medical documents...

at least at mediation, you can take all the docs that are 'relevant" to you, and what you need to achieve...and your "expert evidence" should at least be tabled and listed as relevant.

especially as DRSL is owned and operated by acc, thereby not actually independant at all!
0

#4 User is offline   unit1of2 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 869
  • Joined: 20-March 12

Posted 19 April 2012 - 04:49 PM

View Postnot their victim, on 09 March 2012 - 05:19 PM, said:

has anyone ever been offered mediation instead of having to go to DRSL...

I stated this recently in one of my complaints...why the sham of going into DRSL knowing full well acc had withheld medical documents...

at least at mediation, you can take all the docs that are 'relevant" to you, and what you need to achieve...and your "expert evidence" should at least be tabled and listed as relevant.

especially as DRSL is owned and operated by acc, thereby not actually independant at all!



I had a mediation a few years back, basically just another expensive waste of time. At the start it seemed that ACC were very interested 'FOR THE VERY FIRST TIME' to hear my entire story from start to... well there hasn't been a rehab'd finish yet, but ACC appologised and said yes you are right in what you are saying that ACC are quilty of 'blah blah', however it won't stop. It is unfortunate that this is the case for you. So, going forward it was agreed previous reports were only to be used under sticted permission/s, total waste of time as ACC continued to do so regardless of not having permission/s. Also I was to see several specialists to be again reassessed, however they were not 'Independant Specialists appointments' at all. I was again threatened with disentitlements if I didn't attend 'THIS APPOINTMENT WITH THIS SPECIALIST'.. anyway a long story shortened, ACC themselves squashed that signed aggreement to send me for all these assessents and I had to wait again for ALL these Reviews to go through fighting for the right to complete these assessments. Only to find months later ACC said they didn't receive all the Review applications. Basically thats lies, I was in attendence when all review applications were faxed through. Sooo, then months of inhouse crap, and Reviews to review the reviews before it was settled that I was indeeded legally entitled to attend these Independant Specialist assessments, but alas of course, ALL dodgey uncorrected reports have been used from start to finish and STILL to this very day. Only now ACC are using a stamp 'Draft Copy' on all my reports. Huh, I have never had them corrected as all the corrections I have made have never been used or sent with them.
I attended another assessment couple of months back, I was told by the female Specialist that she is employed of course by ACC, that I had to sign her documentation, (naturally I had to or I would be seen to be non-compliant and disentitled) and that she would be conversing by phone to my Case manager of my progress/details of which I would not be privy to. She told me in approx 2 - 3wks I would be supplied a draft copy of her report to make any changes in reference to information I had voluntared or supplied. I was to get back to her and let her have a copy of any corrections and then she'd send it all onto my ACC Case manager. WHAT A PACK OF LIES... I was never given any so called draft copy to peruse and make corrections at all... I received a very lengthy and damming supposedly 'Report' stating that I was a drama queen basically and a very good actress that has used the system for all these years. Apparently after my very serious accident involving whole of spine and head trauma. She incorrectly states that I was actually working 'FULL TIME' till I was made redundant, and that I have been, using the system ever since. AND another BIGGY, she told me that it would be good for her to know my condition whilst going through the exam, and anything that I could be of assistance for her when trying to compare my past condition/s to that of now. I did so, feeling that she was genuinely interested to know and feeling that it would help her understand how I had been coping/not coping and the reason/s. WELL now I am basically labelled as totally obsessed with myself and yet she states there is nothing actually wrong with me. She never took into account my fatigue when doing all this so called testing. Never mentioned that I had to pull over in my car to sleep on my travels, never mentioned that I was sleeping in the car part in my car, never mentioned that I was actually staying overnite in town due to fatigue. Oh NO, apparently she states that I am able to drive all this distance, do these hours of tests, x 3 appointments all so comfortably.. HUH what a joke! Instead of getting home within a couple of hours of assessment, it takes/took me 5 - 6 hours. Then not really coping well there after due to fatigue and my body hurting doubly due to the driving, (normalfor me since my accident),however I am better equiped at mentally bearing up with this pain/discomfort because I have become conditioned to a point. BUT it does take it's toll and I bottomline and crash out...I had for the first time in a while had to use my neck brace, as I was sooo god dam sore. She made a BIG issue of this in my report. I feel like I am again in jail with the key thrown down the drain, through no fault of my own. I am soooo gobsmacked, and taken back, it has absolutely taken me back into the stress/anxiety syndrome I had when I was knocked off ACC for wishing to record my assessment, and then again for my advocate being 1min late to my appointment. In all, nine straight months of poverty..! I was a blithering mess. Living in constant stress/anxiety and fear takes it's toll. And all I have ever asked for is a little 'help' to try and cope with whole spinal issues and head trauma. Why is it such a HUGE thing for ACC to arrange some assistance. They, ACC know that I have never had any history of spinal probs or head truama, and thats advocated by my GP and because of this awareness my GP told ACC, 'because I was 'never' appropriately assessed for the type of accident I had, it means that until I am treated accordingly, I will always have a case to be answered to.
Both instances where I was disentitled, after both reviews I was to be reinstated, and was. BUT in the meantime.... NO assistance.... no nothing.... Oh and for the record, the only ONLY rehab I have ever had for Brain Injury etc, has been my own version of rehab, and I'm no expert. She the so called expert has tried to cast dispersions on my previous Neurophysc assessment in which it was advocated I need some much needed attention/rehab and no-way should I (at the time)be trying to cope at work. I was the one that pleaded to stay on at work for fear of losing my job. My doctor did allow me to a few hours per week at my request, even knowing I wasn't going to be able to actually physically/mentally cope with working for that duration. My own boss said he noted that I wasn't even able to cope/accomplish much, that being, pushing an hour out of four, 3 x per week.. Even my own bosses were disgusted at ACC and tried to get me help by talking to ACC, all to NO avail.
Yup I had been abated for just over a year then I was made redundant, as everyone was. It's in the ACC records. Where does she get off misquoting me and saying I was working full time up till being made redundant...?? DAH And thats only a sniff of the dodgey stuff she's written...

Funny..I remember some folk saying somewhere how these specialists continuously get up and down out of their seats to alter and complain about the air conditioning unit/s in the office, and then the same problem in the next office we last used. hahaha funny as I mentioned, I was already aware of this antic, and was able to switch off to it and try to keep my focus on my test/s. It started on the very first day and after the 3rd disruption and apology for the dodgy heating system, I nearly burst out laughing wanting to tell her I was warned of this type of shanigans. It continued like, every 10 minutes to half hour or so..continuously. It's there way of trying to distract you and testing to see if you forget what your doing, and or to see if you get aggressive I suppose.

Gosh sorry I'm having a weee rant ...
0

#5 User is offline   Gazza16a 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 58
  • Joined: 15-May 10

Posted 19 April 2012 - 05:06 PM

Hi Unit,


Please share the identity of this ACC toad so people are pre-warned.
I know it's hard to Name and Shame, but it does help others.
And as long as these toads are performing for ACC, we don't have a chance.
They are their for their pot of gold and really don't tell the truth.
And that is well proven.
In my case I don't blame ACC ---- It's what the toad put in his specialist report
and that's exactly what they (ACC) wanted.

NAME AND SHAME

Cheers Gazza
0

#6 User is offline   unit1of2 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 869
  • Joined: 20-March 12

Posted 19 April 2012 - 08:04 PM

View PostGazza16a, on 19 April 2012 - 05:06 PM, said:

Hi Unit,


Please share the identity of this ACC toad so people are pre-warned.
I know it's hard to Name and Shame, but it does help others.
And as long as these toads are performing for ACC, we don't have a chance.
They are their for their pot of gold and really don't tell the truth.
And that is well proven.
In my case I don't blame ACC ---- It's what the toad put in his specialist report
and that's exactly what they (ACC) wanted.

NAME AND SHAME

Cheers Gazza




Fact is, even if your aware or made aware of the toady specialist you are 'MADE' TO ATTEND, AND NO CHOICE/S about it, or you'l be disentitled just as they are writing you up to be in such a way to have you disentitled. Only difference in this process is, your knocked off 'IMMEDIATELY' as in, THAT VERY NEXT DAY that you were to attend the assessment and you either didn't or you put a spanner in the works and became in their eyes, non-compliant...verses... DISGUSTING/DISHONEST rogue reporting which down the pipeline within weeks will have you disentitled...
Southern Rehab.. initials K T ring any bells to people... If not be very, very warned.
0

#7 User is offline   Moeroa 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 940
  • Joined: 20-November 09
  • LocationWellington Central City

Posted 19 April 2012 - 08:40 PM

View Postunit1of2, on 19 April 2012 - 04:49 PM, said:


I attended another assessment couple of months back, I was told by the female Specialist that she is employed of course by ACC, that I had to sign her documentation, (naturally I had to or I would be seen to be non-compliant and disentitled) and that she would be conversing by phone to my Case manager of my progress/details of which I would not be privy to. She told me in approx 2 - 3wks I would be supplied a draft copy of her report to make any changes in reference to information I had voluntared or supplied. I was to get back to her and let her have a copy of any corrections and then she'd send it all onto my ACC Case manager. WHAT A PACK OF LIES... I was never given any so called draft copy to peruse and make corrections at all...
That is EXACTLY the tactic one of Rose's friends experienced from the yank psychologist for the SCU.



View Postunit1of2, on 19 April 2012 - 04:49 PM, said:

I received a very lengthy and damming supposedly 'Report' stating that I was a drama queen basically and a very good actress that has used the system for all these years. Apparently after my very serious accident involving whole of spine and head trauma. She incorrectly states that I was actually working 'FULL TIME' till I was made redundant, and that I have been, using the system ever since. AND another BIGGY, she told me that it would be good for her to know my condition whilst going through the exam, and anything that I could be of assistance for her when trying to compare my past condition/s to that of now. I did so, feeling that she was genuinely interested to know and feeling that it would help her understand how I had been coping/not coping and the reason/s.


Why are they ALL behaving like this? Is it one of the ACC pre-requisites for assessors to get the lucrative contracts? Did you ever find out how much the bitch was paid for shafting you?

If not can you do a OIA/PA request?



2

#8 User is offline   unit1of2 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 869
  • Joined: 20-March 12

Posted 20 April 2012 - 09:20 AM

View PostMoeroa, on 19 April 2012 - 08:40 PM, said:

That is EXACTLY the tactic one of Rose's friends experienced from the yank psychologist for the SCU.





Why are they ALL behaving like this? Is it one of the ACC pre-requisites for assessors to get the lucrative contracts? Did you ever find out how much the bitch was paid for shafting you?

If not can you do a OIA/PA request?


I am not familiar with this OIA/PA request? or how do do it. Not that it means much to me, as I know that get paid soooo very well for devious practices. Previous two so called Forensic Pysch specialists which pulled their antics to cancel my actual booked appointments. They both still charged and received between $1500 - $2000 each for truely 'NOTHING'.
0

#9 User is offline   Moeroa 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 940
  • Joined: 20-November 09
  • LocationWellington Central City

Posted 21 April 2012 - 09:58 AM

unit1of2 said:

1334870447[/url]' post='126987']
I am not familiar with this OIA/PA request? or how do do it. Not that it means much to me, as I know that get paid soooo very well for devious practices. Previous two so called Forensic Pysch specialists which pulled their antics to cancel my actual booked appointments. They both still charged and received between $1500 - $2000 each for truely 'NOTHING'.


Why did they cancel? And how did you find out ACC paid so much to the greedy liars?
1

#10 User is offline   unit1of2 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 869
  • Joined: 20-March 12

Posted 21 April 2012 - 12:57 PM

View PostMoeroa, on 21 April 2012 - 09:58 AM, said:

Why did they cancel? And how did you find out ACC paid so much to the greedy liars?


They use anything they can twist to make it look like your being unco-operative to cancel an appointment, even at any stage of the appointment! Be warned!! They are shocking liars!!! There was invoice $ figures on the bottom of the documentation I recieved...all presented at reviews. Those specialists get paid regardless of their lying, scamming dodgey practices against 'fellow suffering human-beings'... I cannot fathom, at all just how these so called 'people' sleep at night. I just can't believe that this GREED for easy, easy big bucks, is practiced by so called professionals These so called professionals take MEDICAL PROFESSIONAL OATHS... These same professional scammers are using damaged people who are vulnerable, scared, in pain, depressed and anxious. They use and abuse these poor folk. All or MOST of these claimants just want is to get something of a life back, some semblence of 'normality' to work again, and maintain life skills!
Why do prominate or professional folk get ALL the necessary treatment/s going forward, yet Joe-bloggs gets zero zip narda rehab.... and abused for asking.
Beggars belief
0

#11 User is offline   Moeroa 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 940
  • Joined: 20-November 09
  • LocationWellington Central City

Posted 21 April 2012 - 07:00 PM

View Postunit1of2, on 21 April 2012 - 12:57 PM, said:

Why do prominate or professional folk get ALL the necessary treatment/s going forward, yet Joe-bloggs gets zero zip narda rehab.... and abused for asking.
Beggars belief



Anything wrong with a VIP list at ACC? It depends on who is on the list, surely
Gotta say it is disquieting, if not downright dismaying, to see the bloody media maintain their mindless assault on the ACC.

Today in the NZ Herald, a new front has been opened up with complaints about the ACC’s policy for handling “VIP claims” and the suggestion it delivers better protection for the privacy of powerful decision-makers, including MPs, judges and ACC board members.

Just why this should be a problem is not immediately apparent to your hard-working MP, who instinctively sees merit in any arrangement that benefits him.

Accordingly he is taking a very dim view of the media giving space to claims about preferential treatment from a Dr Denise Powell, president of Acclaim Otago, a support group for ACC claimants.

This is the sort of thing that gives people the idea there are Class A citizens and Class B citizens, and that the vast majority are Class B citizens, and something should be done about it to create a classless society.

Before you know it, we will be having revolution and bloodshed in the streets or – worse – the return of a Labour government.



Alf accordingly is uneasy when people like Dr Powell point out that if VIPs have an accident, they receive “preferential treatment within ACC”.

If MPs were to drop off the VIP list, fair to say, he might be more relaxed about her disclosures and furthermore he might agree with her and make a fuss about it, claiming it is an outrage.

But where did she get the idea of anyone getting preferential treatment?

Ah. Here’s the answer.

The corporation’s delegation manual stated that these claims were to be handled differently, she said.

“If the service provided by ACC is world leading, why would the manager of the ACC service centre have to handle the VIP claim, rather than the service centre staff?” she asked.

“What is it about ACC’s ‘normal’ service that is insufficient for VIP treatment?”

The answer to that should be evident to anyone who has been reading the Pullar case.

Ms Pullar is not a VIP (although she seems to know more VIPs than Alf does). Accordingly she is being hugely frustrated by the ACC’s handling of her case.

But is there more to the VIP list than the referring of their cases up the chain of command?

Let’s see.

Dr Powell said that while it appeared ACC staff had been instructed to “try everything” to “exit” people from ACC, regardless of whether they had been successfully rehabilitated, “VIP status” seemed to be focused on “insulating those with influence over ACC; those who make the law, interpret the law and oversee its application”.

“By wrapping them in cotton wool, ACC prevents them from being subjected to their ‘try everything’ approach that results in so much heartache to ordinary New Zealanders,” she said.

If the Herald got a simple yes or no reply to its first question when it went to the ACC for comment, it has not given the one-word response to its readers.

To the contrary, we are treated to the convoluted garbage of someone intent on obfuscation.

Some of our Ministers could learn from this for dealing with the Labour tossers at Question Time in the House.

Asked whether its VIP approach amounted to preferential treatment, an ACC spokeswoman said the practice for claims “categorised as VIP on ACC’s registration and claim management systems” followed “the standard allocation and management processes applied to all claims”.

“The only difference being security rights and who can make decisions on the claim,” the spokeswoman said.

VIP claims would be dealt with as with other claims but the final decision would be taken at more senior level, rather than by more junior staff.

She confirmed “security rights” referred to “extra measures to maintain VIP confidentiality”.

But Dr Powell is having none of that and insists this is an anomaly of the sort that should be investigated and explained.

‘The very mechanisms like ACC, that were designed to promote fairness and rehabilitation for everyone, should never have been allowed to be used to give preferential treatment to one group of New Zealanders over another,” she said.

Can’t agree.

Mind you, being bumped off the VIP list wold be apt to occasion a change of opinion. http://alfgrumblemp....he-list-surely/


1

#12 User is offline   not their victim 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 10829
  • Joined: 04-August 08

Posted 10 May 2012 - 08:38 AM

I have now decided after yesterdays farcical behaviour, that i dont think i will bother attending DRSL or mediation EVER again...

I will just hold acc in contempt and expedite straight to court!

limp wristed handshake

new phone that he couldnt set up
the cheap phones handpiecve covered the speaker
the proceedings started about 30 minutes late...

acc kept stating...sign the acc 167...and we will look at your deterioration (the case manager, now T/L picked that date out of a hat, to block over 90+k backpay, it had already been awarded!)

I said, cant sign while your agency under investigation for privacy breaches

never deteriorated..the injury is...exactly has been said by specialists all along

acc want to put me thru VIMA again..I said dont bother..i will NEVER agree to go to another acc assessor ever...why should I???
I already have enough medical evidence stating the neck was badly injury as it was stated, the damage is horrific and irreversible...
acc are not a health agency, therefore i will NOT give them any more health info that is ignored and withheld so that can make a judgement to withhold my entitlements!!!

so apart from saying it was a ""fucking french farse"", and after hearing the most pathetic ("in our opinion) indirect answers...I came home pmsl laughing!!!

I told the advocate right from the start it was a set up!...

and i was right....

and I would never trust certain mediator, who insisted I sign documents, misquoted the law...and then said..."did it ever occur to you that acc is right???
as I said, limp wristed, bought and paid for by acc...

and a suitcase of evidence in tow!

would i use this service again...no...there was no face to face mediation...it was done by teleconference, once again, a breach of natural justice...
0

#13 User is offline   not their victim 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 10829
  • Joined: 04-August 08

Posted 10 May 2012 - 08:41 AM

quote from # 2 post above


Mediator charges range from $3500 to $7000 a day, or $350-$500 an hour.
Terms vary depending on the time provided for, pre-mediation and administration, travelling time and expenses.


easy money for not settling anything...especially as he was bought and paid for by acc!
0

#14 User is offline   hukildaspida 

  • Advanced Member
  • PipPipPip
  • Group: Member
  • Posts: 3353
  • Joined: 24-August 07

Posted 10 June 2012 - 04:32 PM

http://www.nbr.co.nz...kload-gb-120712

Death spiral? Judge and lawyer at odds over judicial workload

Georgina Bond | WEEKEND REVIEW | comments
Anthony Grant


A senior lawyer's suggestion a “death spiral” could trap the High Court as its civil workload shrinks, has forced the court's top judge to defend her patch.

In what has become a rare public clash, Chief High Court Judge Helen Winkelmann has taken serious issue with an argument Auckland barrister Anthony Grant raises regularly in his NZ Lawyer column - that the High Court system of civil justice fails dispute resolution.

The debate re-opens a long-running legal sore exacerbated in recent years by the popular growth in the use of private mediation ahead of the courtroom for lasting dispute resolution.

While not advocating on behalf of private mediation, Mr Grant's argument suggests judges need - in layman's terms - to jerk up their ideas and be better armed to meet the needs of litigants.

Mr Grant complains the absence of specialist judges for many disputes, cost and inefficiency threaten to steer commercial trials away from the country’s High Courts – where the most serious and complextrials are heard.

The consequence, says Mr Grant, when potential litigants circumvent the courts for arbitration and mediation, is the ‘rule of the law’ is also bypassed and whole areas of commercial work are taken away from the courts.

Mr Grant also argues a good diet of civil trials is needed to keep lawyers “skilled in the art of civil trial advocacy” and to develop the pool of future judges.

In the magazine’s April edition, Mr Grant, a barrister at Radcliffe Chambers, says Auckland is the only centre where there is a credible amount (more than 24 a year) of High Court defended civil hearings.

“The practitioners in the other 18 registries will be struggling to get sufficient work to acquire adequate trial advocacy skills,” Mr Grant wrote.

He speculates: The people who might be appointed as judges will also be struggling to get sufficient trial work to acquire the skills that are appropriate for judges.

In the same publication, the following month, Justice Winkelmann said Mr Grant’s comments created an inaccurate picture of the High Court’s civil workload.

Some of New Zealand’s most successful judges have been drawn from outside the ranks of civil litigators, Justice Winkelmann wrote in defence of her judges.

“The skills judges require to perform their role in accordance with their judicial oath are not skills acquired only when acting as trial counsel or honed only when adjudicating a defended civil hearing.”

Judges need a firm grasp of legal principle, a commitment to and observance of fair process and an ability to make a decision, she says.

“These skills are acquired through study, through practice of the law and through adjudication. The requirements of fair procedure are as well reinforced through presiding over a criminal trial as they are through years of practice at the senior bar.”

Justice Winkelmann said an assumption the High Court’s civil workload is reducing was wrong.

The last five years had seen a “very significant” increase in there number of general proceedings disposed of through adjudication of right: In 2007 the High Court disposed of 1,394 general proceedings. In 2011, the court disposed of 2,062.”

Justice Winkelmann says there has also been a corresponding increase in the number of general proceedings disposed of through adjudication of right.

A trend peculiar to New Zealand is that the rate at which civil cases go through to a full trial has not dropped in the face of increased rates of disposal through summary judgment.

In 2007, 93 general proceedings were disposed of by summary judgment (6.7%) compared to 479 (23.2%) last year.

“While other comparable jurisdictions have trial rates of around two to three per cent, New Zealand’s trial rates are high, with between six to 10% of proceedings disposed of through a full defended civil trial.”

The increase in volumes has not been limited to general proceedings.

The number of originating applications that were disposed of by the Court had risen to 906 last year, up from 676 in 2007.

The only area where workload had shrunk was in the court’s civil appeal’s jurisdiction where from 407 applications were disposed of in 2007 compared to 242 in 2011.

“It is thought that it may arise, at least in part, as a flow-on consequence of the procedural reforms introduced to the District Court in late 2009,” Justice Winkelmann says.

Although the New Zealand Bar Association has been critical of aspects of the High Court’s civil case management on occasion, its president Miriam Dean QC also leapt to the system’s defence after Mr Grant’s latest article.

Ms Dean wrote a letter to the editor of NZ Lawyer in May, saying Mr Grant’s article lacked fairness and balance.

Mr Grant’s criticisms did not acknowledge sweeping changes in the High Court discovery regime to introduce significant efficiencies in the trial preparation process, Ms Dean says.

And the Chief High Court Judge had demonstrated commitment to address numerous concerns about the civil justice system. Some initiatives had resulted in proposed reforms to case management, hearing allocation and evidence presentation.

This month Mr Grant has continued to raise his concerns on the topic in an article: ‘Mediation’s rise and litigation’s demise – how the situation might be reversed."

For the Courts to recover their position and get back the commercial business it needs to tackle three primary problems with the courts’ processes: Cost, delay and uncertainty, he says.

“The people of New Zealand deserve better. So too, do our judges. They should be getting a diet of stimulating cases in which they develop the law to make it more relevant and helpful for the community.”

Last August, National Busines Review reported a legal famine of commercial cases saw Justice Winkelmann warn of the dangers of resorting to "private courts" to resolve corporate disputes.

She effectively pleaded with businesses not to abandon public courtrooms.

Her concerns came at a time when NBR revealed commercial case filings in the Auckland High Court had halved over the previous four years, but the number of disputes had not appeared to have dropped.

Few commercial cases are heard outside Auckland.

Otago University law researchers added fuel to the fire with a report which accused judges and lawyers of taking too long to resolve civil cases.

In an exclusive interview with NBR in November 2010 about the role of private dispute resolution, former leading commercial judge turned private mediator Robert Fisher QC said the growth of private dispute resolution disappointed judges and was a disincentive to judicial appointment.

Mr Fisher said judges liked dealing with high calibre cases and were disappointed a lot of significant legal argument was dealt with outside their courts.

A number of senior legal sources told NBR at the time that commercial dispute resolution had undergone a complete sea-change as more people shunned "non-user friendly" courts and judges were sidelined.

More by Georgina Bond

Comments and questions

These two paragraphs make no sense. Presumably the second got lost from somewhere else:

The last five years had seen a “very significant” increase in there number of general proceedings disposed of through adjudication of right: In 2007 the High Court disposed of 1,394 general proceedings. In 2011, the court disposed of 2,062.”

Justice Winkelmann says there has also been a corresponding increase in the number of general proceedings disposed of through adjudication of right.
Alan Wilkinson | Saturday, June 9, 2012 - 12:22pm

reply

The legal system, especially as it relates to commercial and company disputes has become laborious, protracted, convuluted and over the top expensive and most judges do not have sufficient commercial experience to deal with the cases effectively and so the whole thing has become something of a joke. Arbitration or mediation is by far the most pragmatic way to go despite having its inquitous aspects
Anonymous | Saturday, June 9, 2012 - 9:14pm
0

#15 User is offline   netcoachnz 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 3454
  • Joined: 26-January 11

Posted 09 March 2013 - 12:05 PM

View Postnot their victim, on 09 March 2012 - 05:19 PM, said:

has anyone ever been offered mediation instead of having to go to DRSL...


I have requested mediation several times, however, ACC refuse and therefore I have to take then to Review.

Mediation is part of the Restorative Justice practices that are being promulgated by this government, I do not see why the mediation process is not used more widely by ACC.

We certainly need a dedicated ACC Ombudsman
0

#16 User is offline   not their victim 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 10829
  • Joined: 04-August 08

Posted 26 March 2013 - 07:43 AM


New Zealand: Arbitration, Inc?

posted by lawfueleditors

, on Mar 21
[color=#04558B !important][font=Arial, sans-serif !important]3[/font]
[url="""]in[color=#333333 !important][font=Arial, sans-serif !important]Share[/font][/color][/url]
[color=#403F07][/color]diggPosted Image[/color][color=#5A5A5A]Recent moves in two key jurisdictions may provide an opportunity for New Zealand to position itself as a key player in the international arbitration game.[/color]

[color=#5A5A5A]Both Australia and the UK have taken steps to cement their position as leading jurisdictions for disputes settlement, with London's international reputation as a centre of legal services leading the charge.[/color]

[color=#5A5A5A]The recent battle of the Russian oligarchs, Roman Abramovich and Boris Berezovsky, embroiled in last year's £3 billion battle which generated multiple millions of dollars for City lawyers. It is believed London sees around £3.5 billion spent on legal fees by foreign lawyers and their clients.[/color]

[color=#5A5A5A]UK Justice Secretary Chris Grayling used the case and other recent disputes resolved or litigated in London to push for further development of the UK as a major international centre for dispute resolution and arbitration.[/color]

[color=#5A5A5A]The argument for the UK does not need a great deal of pushing given its existing business, infrastructure and the allure of the solid British legal system. Already the arbitration of Mid-East oil disputes is creating high interest in the development of a London-based confidential arbitration centre.[/color]

[color=#5A5A5A]However, New Zealand's role as a potential centre for international arbitration and disputes resolution is one that has frequently been touted and remains on the table as a viable business case.Last year, former jurist and leading arbitrator David Williams QC landed the largest award ever rendered by the tribunal at the International Centre for the Settlement of Investment Disputes (ICSID) in the dispute between Ecuador and US-based Occidental Petroleum. [/color]

[color=#5A5A5A]David Williams arbitrated together with a Canadian QC and a retired French law professor. [/color]

[color=#5A5A5A]The award was for over $1,700,000,000.Although New Zealand is light on arbitrators of David Williams' calibre, it nonetheless has been developing its arbitration and mediation prowess, particularly via the Bankside Chambers' group with Sir Ian Barker, Campbell McLachlan and Simon Foote displaying international arbitration success and as arbitrators who are as good as any in the world.[/color]

[color=#5A5A5A]The competition for arbitration and disputes resolution work is intensely lucrative, as a spin off from investment and commercial business. [/color]

[color=#5A5A5A]A recent Australian High Court decision dismissing a constitutional challenge to the International Arbitration Act in Australia created a cast-in-stone status to Australian arbitration rulings and lead to calls in Australia for further international disputes resolution and arbitration work.[/color]

[color=#5A5A5A]The Australian case related to a distribution agreement between a Chinese air conditioner manufacturer and an Australian electronics company and examined the recognition and enforcement of arbitration awards.Apart from conventional commercial disputes and arbitrations, the rapidly emerging and signficant areas of IP law and disputes within the technology, internet domain and online community is significant and also offers opportunities. [/color]

[color=#5A5A5A]Wellington barrister Peter Dengate-Thrush formerly held the chair of the Internet Corporation for Assigned Names and Numbers (ICANN)and currently barrister Chris LaHatte acts as ICANN ombudsman, reporting to the ICANN board on disputes and related matters. [/color]

[color=#5A5A5A]Similarly, barristers like ANdrew Brown, also of Bankside Chambers, are internationally recognised as IP specialists who can leverage their skills readily into disputes resolution issues.[/color]

[color=#5A5A5A]Source: Lawfuel.co.nz[/color]

[font="Droid Sans, Arial, Helvetica, sans-serif"][color="#5a5a5a"]http://www.lawfuel.c...arbitration-inc[/color][/font]

[color=#5A5A5A]
[/color]


0

Share this topic:


Page 1 of 1
  • You cannot start a new topic
  • You cannot reply to this topic

1 User(s) are reading this topic
0 members, 1 guests, 0 anonymous users