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MANDATORY MEDIATION

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

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MANDATORY MEDIATION

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  1. MANDATORY MEDIATION THE RELUCTANT PARTICIPANT

  2. COMMONWEALTH LEGISLATION • Federal Court of Australia Act 1976 • Family Law Act 1975 • Federal Magistrates Court Act 1999

  3. 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.

  4. 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.

  5. 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. ......

  6. 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. ........

  7. 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.

  8. 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.

  9. Queensland Civil andAdministrative Tribunal Act2009 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.

  10. Dispute Resolution CentresAct 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.

  11. Dispute Resolution CentresAct 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.

  12. 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.

  13. BENEFITS OF MEDIATION OF WHICH THE PARTIES SHOULD BE TOLD • 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.

  14. 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.

  15. 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

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