Law-Civil Procedure

Introduction

The last two decades has been marked by fundamental changes in how the law and lawyers are perceived by the public. The rapid development of mediation has to some extent driven this transformation. This process has lead to a re-examination of the ways lawyers deal with conflict. Mediation has generated a move towards perceiving conflict as a positive demand for justification or explanation rather than as a problem to be overcome by litigation. The Supreme Court of Victoria as well as lower courts and tribunals have gradually introduced mediation as a standard part of their case management procedures.

According to Tyler and Bornstein (2007), “while there was initial scepticism about ADR (alternative dispute resolution) in some quarters, mediation and other ADR techniques are now an entrenched part of the justice system in most jurisdictions”.[1] The research presented in this paper examines mediation in the context of relevant Victorian Supreme Court Civil procedure. The research paper examines whether mediation is successful in the Victorian Litigation process. In addition, its unique capacity to provide a venue for settlement and the increase of mediations in most Australian courts and tribunals will be analyzed.

The Mediation Experiment

Mackie (1991) notes that it is not just courts and communities that have made greater emphasis on ADR techniques in Australia.[2] In the early 1980s, commercial lawyers became aware of the advantages of mediation and began to use ADR techniques. As an outcome of this process, in 1986 the public saw the establishment of the Australian Commercial Disputes Centre, and two years later in 1989 a private group of practitioners formed Lawyers Engaged in Alternative Dispute Resolution (LEADR). LEADR was formed by lawyers to educate the profession in ADR. The membership of LEADR had become greater in size from 815 in 1993 to 1385 in 1996 and 1822 in 1999. Some members of LEADR are currently based overseas.[3]

In 1983, mediation was added to the rules of the Building Cases List of the County Court of Victoria which is lying below the Supreme Court of Victoria. In 1992, with a new State government and the chief government law officer, the Supreme Court of Victoria began a “Spring Offensive” to make smaller in size its list of cases, a main component of which included the mediation programme intended to assist in settlement in just over fifty percent of the Court's civil list of cases awaiting trial.[4]

This was a step of great importance in bringing mediation to the re-evaluation by Victorian lawyers and judges, and was given new strength by an “Autumn Offensive.” In the Autumn Offensive 1995, a settlement rate of 79.65 per cent was obtained in those cases directed to mediation.[5] By that period of mediation development, many legal practitioners had become actively involved in mediation training practices, so that mediations had become considerably more educated and experienced.

To reduce the number of cases going to trial, judges of the Supreme Court of Victoria have referred many cases to mediation. According to Rule 50.07 of Chapter I of the Supreme Court Rules, the Victorian Supreme Court may at any stage of civil procedure (disregarding the consent of the parties) order a proceeding to mediation. In addition, parties also can ask the Court to direct them to a mediator. When a proceeding in the Court has progressed to the moment of setting a trial date, the presiding judge may ask the parties to mediate their conflict. The Court has no guidelines for determining what cases are most appropriate for mediation.

The development of a range of mediation services to assist the parties is encouraged. Mediation in disputes may be conducted in different kinds of settings and be led by legal practitioners of different professional backgrounds and practice. It also may include various techniques and means adopted in tackling a conflict. Mediators are selected from a list approved by Supreme Court of Victoria. The Court had certified approximately four establishments: Law Institute of Victoria ADR Mediation Service, The Institute of Arbitrators & Mediators Australia, The Institute of Arbitrators & Mediators Australia, and LEADR.[6]

Mediation as a Standard Part of the Victorian Litigation Process

Over the past two decades, using mediation to resolve civil conflicts has become increasingly popular in the Australian court system. The Chief Justice of the Supreme Court of Victoria declared formally:

It should be stressed that mediation is not an inferior type of justice. It is a different type of justice. All studies of dispute resolution show that people greatly value quick resolution of disputes and the opportunity to put their case in the presence of a neutral person. Mediation satisfies both these requirements.[7]

The enthusiasm for mediation in the Australian court system is based in part on the successes of mediation in construction, engineering, law, finance, business, health services, political bodies’ disputes, and international negotiations. Despite the fact that civil regulatory disputes usually have been resolved through unassisted negotiations and through litigation, supporters of mediation have claimed that it is a better alternative to litigation in several important respects.

One positive aspect of mediation is savings in time and money. As a result, mediation provides parties with something certain and helps to avoid the risk. Mediation reduces 1) the number of cases in the courts and agencies; 2) the time it takes to resolve disputes; 3) money spent in litigation.[8] Supporters of mediation also indicate the greater intrinsic value of mediated settlements regarding accumulated knowledge, advancing the parties' initial goals, and participant satisfaction and certainty.[9]

Analysis of mediated settlements has shown higher rates of implementation and compliance.[10] A considerable advantage observed in mediation is that by allowing a broader examination and consideration of issues it encourages better understanding of civil disputes, which are often relating to more than one party and more than one issue. However, it should be noted that few, if any of these findings have been researched using solid empirical evidence.[11]

Some of the most prevailing claims found in the dispute resolution literature indicate the benefits of mediation over litigation which is adversarial in nature. For example, the nation's longest-serving attorney-general, Rob Hulls, has expressed uncertainty about whether the adversarial system is effective and has declared that mediation will take centre stage in future reforms to the Victorian legal system.[12]

Rob Hulls, who announced the $3.7 million pilot project, based on a Canadian model, said he had “no doubt” that not enough efforts had been done to promote mediation to litigation. The attorney-general also stated that “between October 2005 and July 2007, 94 Supreme Court cases were referred to mediation, 59 per cent of which were resolved at or after master-assisted mediations”.[13] As a result, 311 sitting days were saved. Rob Hulls declared that mediation is flexible technique putting the public in control.

The public in Victoria has better opportunities for resolving legal civil disputes outside of the Court, thanks to the Magistrates’ Court Mediation Diversion Project together with the Magistrates’ Court, launched in 2002. The Project provided more mediators to assist in alternative dispute resolutions. Tyler and Bornstein (2007) present the findings of a review of the Project accomplished by the Dispute Settlement Centre of Victoria (DSCV) in collaboration with the Magistrates’ Court of Victoria.[14]

In 2002, the DSCV began a two-year pilot project to evaluate the use of mediation for resolving criminal/civil disputes. During the second year of the pilot project, enforcement actions involving private parties were added. The pilot program ended in 2003. An additional evaluation of this project was completed by the International Conflict Resolution Centre at the University of Melbourne in June 2004.[15] Cases for the pilot project were selected by the DSCV project officer according to the following criteria: (1) parties have reached an insurmountable difficulty in negotiations; (2) the case is in or about to enter litigation; (3) the issues in dispute have been determined; (4) the parties agree to pay for mediation.

Analysis of data collected by the DSCV indicates that good levels of agreement were reached in all 74 cases mediated under the Project. These findings show that mediation is an appropriate alternative method for resolving civil cases. A further indication of the appropriateness and benefits of mediation as a resolution process for civil cases is the level of parties’ satisfaction with mediation, suggesting that mediation is a process that is advantageous to the public in Australia. Moreover, the evaluation also brought to light particular elements for improvement.[16]

This research paper represents the first attempt in over twenty years to assess some of the basic issues of judicial administration that arise in court use of mediation. The findings support the statement that cases that are mediated settle more frequently than do cases which make use of traditional litigation. In addition, the statement that mediated disputes result in higher rates of compliance and implementation is also supported by the research paper. While more mediation investigation is needed, Tyler and Bornstein’s research paper provided some of the cross-sectional empirical examination very much needed in the field.

Mediation under Compulsion

It was a first expectation that the public would go in large numbers to mediation as an alternative to litigation. This has been mistaken thought. In Australian culture it is much easier to spend time in litigation than to sit down with an opposing party and examine the issues. The Supreme Court of Victoria has recognised this and has ordered a proceeding to mediation (with or without the consent of the parties). Making mediation a process undertaken by free choice would not have overcome party fears and lawyer doubts. Without compulsion, mediation would have lost strength as an alternative to litigation.

Negotiation

Mediation, like litigation, is nowadays a standard procedure of the Australian court system. There is an obvious duty on lawyers to counsel the parties appropriately about mediation. However, a discussion that is beginning to rise is whether a professional duty arises for the legal practitioner once the mediation process starts, in particular in terms of their negotiating practices. The courts are already beginning to define what is meant by proper negotiation. It is probable that courts will define in the near future what are unprofessional negotiating practices by lawyers both in and outside the mediation process.

Mediating Divorce - an Alternative to Litigation Mediation services are intended to help separating or divorcing couples to resolve disputes associated with child custody and access, living agreements, satisfying the demand for property and spouse and child provision after a divorce. Mediators can be men and women who have family law or family and relationship advising experience. Typically, separating or divorcing couples are present at two to four sittings of one-and-a-half to two hour's duration.

The Family Court of Australia has proposed alternative dispute resolution in the form of services which help the parties in a dispute to reach agreement. Registrars and Court Counsellors are assigned to give help to parties in resolving their disputes over property distribution, access and custody themselves rather than having verdicts reached by the Judge.

According to the coordinators of mediation services now in action, the whole proceedings in divorce mediation include: 1) pre-mediation examination and provision of required information or referral to other services offered by professionals to help clients resolve problems if appropriate; 2) considering and making clear matters of concern and areas of settlement and dispute; 3) examining carefully the personal needs and resources of each party; 4) and elaborating plans which meet everyone's needs as absolutely as possible.

The mediator examines and determines the issues involved in power imbalances by pointing out areas where each partner is knowledgeable. For instance, while the woman may know more about the children and running the household, the man may have more knowledge about business. Either partner may be stimulated to learn more about his or her legal rights and ability to make decisions, and financial resources (the price of property, for instance, or the amount paid for children's clothes). The mediator may require this information to be brought to the mediation session.

An agreement to mediate is in most cases signed by both parties. The parties also share the amount paid for the mediator. A favourable outcome for mediation is usually an official agreement between the clients, prepared by the mediator and signed by the clients. After this, the agreement can be used as a basis for a legal procedure. The agreements are usually quite detailed and smooth the wheels of justice. The Victorian Supreme Court stresses that the text should be clear and easily understood by all clients.[17]

Mediation projects designed to help separating or divorcing couples currently operating in the Australian legal system have not yet presented the findings of any long-term evaluations of their services. Foreign research on the effectiveness of court ordered couple mediation has generally found it to be an effective and advantageous approach for resolving disputes outside the litigation process. Advantages resulting from successful court ordered mediation reported in the literature include the preventing from financial and emotional costs of litigation, a chance to develop or support a positive parental relationship, and an opinion that agreements are practicable and fair according to the circumstances.[18]

CDR Associates (1989) claims that mediation is most likely to be successful where: 1) the clients do not have a long record of litigation; 2) there is some developing relationship; 3) the clients have a degree of psychological disinterest; 4) there is enough information to conduct negotiations to achieve an agreement; 5) hostility between the parties is not overpowering in effect; 6) and there is mutual agreement regarding intervention by a third party.[19]

An Empirical Analysis of Mediation in the Victorian Litigation Process

Because so little empirical research has been completed on court ordered mediation, there are a lot of disputable questions about its organization and process; its benefits regarding settlement quality, costs and timing savings; and how to differentiate the cases and identifying what are most appropriate for the process. As noted in above research, mediation advocates state that mediation results in higher settlement rates, in comparison with litigation. Mediation advocates also assert that mediated settlements are having more possibilities of success in being complied with and implemented than those going through litigation or administrative procedures.[20]

Given the insufficiency of empirically based research, it must be admitted that much of current information concerning court ordered mediation is based chiefly on thoughtful theory or insight, with few data to support these claims. Finally, Tyler and Bornstein (2007) conclude that more cross-sectional empirical research should be done to reveal when and under what conditions court ordered mediation should be used.

It should be noted that a research project into the use and effectiveness of mediation in the Supreme Court and the County Court of Victoria has been initiated by the Victorian Department of Justice. The project is undertaken by Professor Tania Sourdin and her research team at the Australian Centre for Peace and Conflict Studies at the University of Queensland (Melbourne campus).[21] Their findings including evaluation information regarding the effectiveness of court ordered mediation is likely to be presented in September 2008. Their research is intended to examine whether mediation results in higher settlement and compliance rates in comparison with unassisted negotiation and litigation.

Conclusion

Until the early 1980s, the main approach to resolving the conflicts and disputes has been litigation. However, the adversarial legal system is considered, in many cases, to make these conflicts costly, time-consuming, stressful and subject to risk. From the perspective of the Supreme Court of Victoria, mediation is a process of dispute resolution, alternative to litigation. The point made in this research paper about mediation is that it has taken lawyers and judges almost two decades to wake up to the recognition that mediation is not just another adversarial session.

Commercial clients have become aware of this fact for some time and have jumped ahead of legal representatives with various projects of alternative dispute resolution. Today, the Supreme Court of Victoria realizes that litigation may not be the best way to help the parties to resolve a dispute. Therefore, the Court supports mediation positively. The research in this field shows that mediation in the Victorian Litigation process adds an outside force that moves civil disputes to settlement.

Mediation programmes are successful, achieving well on indicators such as time and money savings, certainty, client satisfaction with mediation, and the number of agreements reached. Taking into account the relatively few studies of such programmes to date, the results of the research in this field offer useful information regarding a number of important issues of mediation in the Victorian Litigation process. It is to be hoped that this analysis will promote more research and debate on the effectiveness of court ordered mediation.

Bibliography

Alternative Dispute Resolution: General Civil Cases, The Use and Provision of ADR in New Zealand, retrieved 25 May 2008, http://www.justice.govt.nz/pubs/reports/2004/adr/use.html

Bartlett, C “Mediation in the Spring Offensive 1992”, Law Institute Journal 232, 1993.

Bornstein, M, Handbook of Parenting, Vol. 3, Lawrence Erlbaum Associates, Mahwah, NJ, 2002.

Department of Justice, Mediation in the Supreme and County Courts of Victoria Research Project, retrieved 25 May 2008, http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/Courts/Research+and+Statistics/JUSTICE+-+Mediation+in+the+Supreme+and+County+Courts+of+Victoria+Research+Project

Emery, R, and Wyer, M, ‘Child custody mediation and litigation: An experimental evaluation of the experience of parents’. Journal of Consulting and Clinical Psychology, 55, 1987.

Fyfe, M, The Age, Judgement Day Looms for Overloaded Legal System, May 4, 2008, retrieved 25 May 2008, http://www.theage.com.au/news/national/judgement-day-ahead-for-legal-system/2008/05/03/1209235234296.html

Golvan GH, “A decade of Mediation ─ the Promise Fulfilled?”, The Arbitrator 18(3), 2000.

Jeanette, M and Daglis, A, An Evaluation of Pre-Hearing Conferences in the Family Division of the Children's Court of Victoria, March 2005, retrieved 25 May 2008, http://www.childrenscourt.vic.gov.au/CA256902000FE154/Lookup/Evaluation_of_Pre_hearing_Conferences_2005/$file/Evaluation_ of_Pre_hearing_Conferences_2005.pdf

Mackie, K J, A Handbook of Dispute Resolution: ADR in Action, Routledge, New York, 1991.

Supreme Court of Victoria, Mediation, retrieved 25 May 2008, http://www.supremecourt.vic.gov.au/wps/wcm/connect/Supreme+Court/Home/Support+Services/Mediation/

Tyler, M C and Bornstein, J, ‘Court Referral to ADR: Lessons from an Intervention Order Mediation Pilot’, Melbourne Law School, No. 213, February 2007, retrieved 25 May 2008, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=964794

Wade, J “Current Trends and Models in Dispute Resolution, Part II”, Australian Dispute Resolution Journal 59, 1998.

[1] M C Tyler, and J, Bornstein, ‘Court Referral to ADR: Lessons from an Intervention Order Mediation Pilot’, Melbourne Law School, No. 213, February 2007, retrieved 25 May 2008, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=964794

[2] K J, Mackie, A Handbook of Dispute Resolution: ADR in Action, Routledge, New York, 1991.

[3]Alternative Dispute Resolution: General Civil Cases, The Use and Provision of ADR in New Zealand, retrieved 25 May 2008, http://www.justice.govt.nz/pubs/reports/2004/adr/use.html [4] C Bartlett., “Mediation in the Spring Offensive 1992”, Law Institute Journal 232, 1993, p. 67. [5] GH Golvan, “A decade of mediation ─ the promise fulfilled?”, The Arbitrator 18(3), 2000, p. 140. [6] Supreme Court of Victoria, Mediation, retrieved 25 May 2008,

http://www.supremecourt.vic.gov.au/wps/wcm/connect/Supreme+Court/Home/Support+Services/Mediation/

[7] ibid. [8] GH Golvan, op.cit., p. 140. [9] J Wade, “Current Trends and Models in Dispute Resolution, Part II”, Australian Dispute Resolution Journal 59, 1998, p. 61. [10] M C Tyler, and J, Bornstein op.cit., p. 30. [11] ibid [12] M, Fyfe, The Age, Judgement Day Looms for Overloaded Legal System, May 4, 2008, retrieved 25 May 2008, http://www.theage.com.au/news/national/judgement-day-ahead-for-legal-system/2008/05/03/1209235234296.html

[13] P, Michael, The Australian, Mediation the Future, says Hulls, March 07, 2008, retrieved 25 May 2008, http://www.theaustralian.news.com.au/story/0,25197,23330567-5013945,00.html [14] M C Tyler, and J, Bornstein. [15] ibid.

[16] ibid., p. 35. [17] M, Jeanette and A, Daglis, An Evaluation of Pre-Hearing Conferences in the Family Division of the Children's Court of Victoria, March 2005, retrieved 25 May 2008, http://www.childrenscourt.vic.gov.au/CA256902000FE154/Lookup/Evaluation_of_Pre_hearing_Conferences_2005/$file/Evaluation_ of_Pre_hearing_Conferences_2005.pdf

[18] R, Emery, and M, Wyer, ‘Child custody mediation and litigation: An experimental evaluation of the experience of parents’. Journal of Consulting and Clinical Psychology, 55, 1987, pp. 179–186. [19] M, Bornstein, Handbook of Parenting, Vol. 3, Lawrence Erlbaum Associates, Mahwah, NJ, 2002, p. 167.

[20] ibid., p. 135.

[21] Department of Justice, Mediation in the Supreme and County Courts of Victoria Research Project, retrieved 25 May 2008, http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/Courts/Research+and+Statistics/JUSTICE+-+Mediation+in+the+Supreme+and+County+Courts+of+Victoria+Research+Project