MANDATORY MEDIATION
THE RELUCTANT PARTICIPANT
COMMONWEALTH LEGISLATION
• Federal Court of Australia Act 1976
• Family Law Act 1975
• Federal Magistrates Court Act 1999
Federal Court of Australia Act 1976
FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 53A
Arbitration, mediation and alternative dispute resolution processes
(1) The Court may, by order, refer proceedings in the Court, or any part of
them or any matter arising out of them:
(a) to an arbitrator for arbitration; or
(b) to a mediator for mediation; or
(c) to a suitable person for resolution by an alternative dispute
resolution process;
in accordance with the Rules of Court.
(1AA) Subsection (1) is subject to the Rules of Court.
(1A) Referrals under subsection (1) (other than to an arbitrator) may be
made with or without the consent of the parties to the proceedings. Referrals to
an arbitrator may be made only with the consent of the parties.
(2) The Rules of Court may make provision for the registration of awards
made in an arbitration carried out under an order made under subsection (1).
(3) This section does not apply to criminal proceedings.
FAMILY LAW ACT 1975 - SECT 13C
(1) A court exercising jurisdiction in proceedings under this Act may, at
any stage in the proceedings, make one or more of the following orders:
(a) that one or more of the parties to the proceedings attend
family counselling;
(b) that the parties to the proceedings attend family dispute
resolution;
(c) that one or more of the parties to the proceedings participate
in an appropriate course, program or other service.
...
(5) The court may make orders under this section:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a lawyer independently representing a child's interests
under an order made under section 68L.
FEDERAL MAGISTRATES ACT 1999 SECT 34
Mediation
(1) The Federal Magistrates Court may, by order, refer
proceedings in the Federal Magistrates Court, or any part of
them or any matter arising out of them, to a mediator for
mediation in accordance with the Rules of Court.
(2) Subsection (1) has effect subject to the Rules of
Court.
(3) Referrals under subsection (1) to a mediator may
be made with or without the consent of the parties to the
proceedings.
......
Supreme Court of Queensland Act
1991
102 Court may consider and order reference to ADR process
(1) The Supreme Court may require the parties or their
representatives to attend before it to enable the court to decide
whether the parties’ dispute should be referred to an ADR
process.
(2) This section also applies if—
(a) a party applies to the Supreme Court for an order
referring a dispute to an ADR process; or
(b) the parties are otherwise before the Supreme Court.
(3) The court may, by order (referring order), refer the dispute
for mediation or case appraisal.
........
Supreme Court of Queensland Act
1991
103 Parties must attend at ADR process if Supreme Court
orders
(1) If a referring order is made, the parties—
(a) must attend before the ADR convenor appointed to
conduct the ADR process; and
(b) must not impede the ADR convenor in conducting and
finishing the ADR process within the time allowed
under the referring order.
(2) If a party impedes the ADR process, the Supreme Court may
impose sanctions against the party, including, for example—
(a) by ordering that any claim for relief by the defaulting
party is stayed until further order; and
(b) by taking the party’s action into account when awarding
costs in the proceeding or in another related proceeding
between the parties.
Supreme Court of Queensland Act
1991
106 Party unable to pay share of costs
(1) If, at any time, the Supreme Court is of the opinion a party
to an ADR process is unable, because of the party’s
financial circumstances, to pay the party’s percentage of
the ADR costs, the court may make an order appropriate in
the circumstances.
(2) Without limiting subsection (1), the order may provide—
(a) the reference to the ADR process be cancelled; or
(b) the referring order be revoked and another referring
order made.
Queensland Civil and
Administrative Tribunal Act
2009
Mediation
75 Referral by tribunal or principal registrar
(1) The tribunal or the principal registrar may refer the subject
matter, or a part of the subject matter, of a proceeding for
mediation by a mediator appointed by the tribunal or principal
registrar.
(2) A referral under subsection (1) may be made with or without the
consent of the parties to the proceeding.
Dispute Resolution Centres
Act 1990
2 Interpretation
In this Act—
...
referring order means an order referring a dispute for
mediation made by—
(a) the Supreme Court under the Supreme Court of
Queensland Act 1991, section 102; or
(b) the District Court under the District Court of
Queensland Act 1967, section 97; or
(c) a Magistrates Court under the Magistrates Courts Act
1921, section 29; or
(d) QCAT, or the QCAT principal registrar, under the QCAT
Act, section 75.
Dispute Resolution Centres
Act 1990
Part 4 Mediation
27A Application
(1) This part, other than the prescribed sections, does not apply in
relation to a dispute that is the subject of a referring order.
(2) To remove any doubt, it is declared that the Act that applies to
the mediation of a dispute that is the subject of a referring
order is the Act under which the referring order is made.
(3) In this section—
prescribed sections means—
• this section
• section 28(1), (2), (3) and (4).
.....
31 Mediation to be voluntary
(1) Attendance at and participation in mediation sessions are
voluntary.
(2) A party to a mediation session may withdraw from the
mediation session at any time.
WHY DO PARTIES REJECT
MEDIATION
• The party anticipates and expects that the litigation process will be
a toe-to-toe knock down battle which will eventually end up with a
determination by the Court which will vindicate the party’s position.
• The party does not fully understand the mediation process and has
misconceptions about it.
• The party has formed an intransigent view that he or she is simply
unwilling to enter into any settlement of the dispute upon any
terms which that party thinks would be acceptable to the other
party.
• That an extra step in the litigation process will if unsuccessful cause
delay and extra cost
• A deliberate attitude by the party to attempt to delay the litigation
process.
BENEFITS OF MEDIATION OF WHICH
THE PARTIES SHOULD BE TOLD
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Mediation is normally quicker than a hearing.
Mediation is cheaper than a trial,
The procedure is less formal and more relaxed than trial,
The mediation and any settlement may remain secret.
The parties have direct control over the resolution.
The mediation requires the parties to fully prepare and in
that process, appropriate thought and consideration is
given to the parties positions and to the possible
consequences of a failed mediation and ongoing litigation;
• The parties for the first time are given an opportunity to
put their important points and matters which they think are
of significance.
BENEFITS OF MEDIATION OF WHICH
THE PARTIES SHOULD BE TOLD
• The party gets to hear the other side’s position outside that revealed
simply by the pleadings;
• There is an opportunity for the legal advisors hear the case of the other
side presumably put at its best
• The opportunity of trying to identify an alternate resolution which does
not necessarily involve the payment or solely the payment of money;
• The authority of the mediator as an independent person whom often
provides an overview and a rational and sometimes new approach
• The fact that the parties must come face to face (if the mediation is
conducted properly) with the realities of the litigation and in particular the
delays which are likely to be experienced if the litigation proceeds and the
costs which are likely to be incurred if the matter proceeds to a
determination by a Court.
CASES
• Waterhouse v Perkins [2001] NSWSC 13
• Lee & Anor v Loi & Ors [2010] QSC 149 per
Fryberg J
• Wade v Gargett & Anor [2010] QDC 27, per Irwin
DCJ
• Trelour v J H McDonald Pty Ltd [2001] QDC 053,
per Robertson DCJ
• Skalski & Anor v Brown & Anor [2008] QDC 263,
per Kingham DCJ