Kathy Merrick, a commercial dispute resolution partner at Gadens, reflects on what she learned from watching a master mediator in action.
Every case I have worked on has been interesting in its own way. Many have changed me, at least a little. But the case that most certainly had the greatest impact in setting the direction that much of my career would take was one of the first cases I worked on, as a young lawyer at Mallesons Stephen Jaques (as it then was).
The case is referred to as the Spedley Litigation, and involved a number of cases that were being heard together in 1993. As the most junior member of a small team representing the Standard Chartered Bank, my first job was to become deeply familiar with the facts. These were complex, involving round robin and cross balance date transactions, “non-recourse” loans, backdating, and window dressing of financial statements to avoid the scrutiny of regulators, investors and the financial community; accompanied by allegations of breach of trust and fiduciary duty, insider trading, fraudulent misrepresentation, false statements to auditors and experts, shadow director claims and so on. The only way to make sense of it was to immerse myself, hunting for the clues that would transport me back to the “scene of the crime”, as it were, to figure out what happened, how and why.
The legal fire power harnessed by the parties was formidable – big name silks and top juniors, many of whom have since gone to the bench. A courtroom was refurbished specifically for the hearing, to accommodate the two rows of barristers (referred to as “the first 11” and “the second 11”), including the legendary Tom Hughes QC and Peter Hely QC. Having earned my spot at the solicitors’ table after spending months piecing together events from documents, notes, transcripts, hints and snippets, I was keen to see the courtroom drama unfold.
Of course, every drama has a twist. In this case it was an application to the court to order that the parties engage in mediation. At the time, there was real doubt as to whether the court could compel parties to mediate. Undaunted, Justice Rolfe simply adjourned the matter for a period, to allow the parties to “consider settlement through mediation or otherwise”.