The
Practicalities of Mediation
in the Supreme Court of Western Australia: The Current State of Play
Author: The Hon Justice Ralph Simmonds, Supreme Court of
Western Australia
Contents
1.
Introduction
An earlier version of this paper was
prepared for delivery at the 2004 Annual
General Meeting of the Western Australian Dispute Resolution
Association
Incorporated, at Murdoch University, on 6 October 2004, and has
benefited from
comments made in the discussion and other
exchanges that ensued,
including
valuable comments from this paper's referee. The paper is about one of
the
central elements of modern
civil procedure, at least in this country.
Whether
as a way of ensuring that only the real issues take up trial time, or
as a way
of facilitating resolution of the parties' dispute so as to avoid the
need for a
trial, or to put an end to one, court-annexed pre-judgment
mediation is
a
fixture of courts like the Supreme Court of Western Australia. There is
an
elaborate framework, in legislation and
rule, to accommodate the
process, and in
particular to protect the mediator. There is a significant investment
of court
resources
(in our trained Registrars) in this form of mediation. There
is an
emerging body of practical experience in our court about how to
get the
most out
of the investment in it. And there is heartening, if not completely
incontestable, data pointing to worthwhile returns
from it. This paper
touches
on all of these, and seeks to address the practical aspects of
mediation that
the experience in this
Court has shown. This paper builds on a paper by
Chief
Justice Malcolm, for the National Alternative Dispute Resolution
Advisory
Council Forum, Perth (2002), published in the Alternative
Dispute Resolution
Bulletin, which provides the history of court-annexed
mediation in the
Court, and assesses its impact.
But first I should say what this paper is
not. It is not about mediation for
cases where an appeal has been initiated after trial.
A number of
Australian
courts, such as the New South Wales Court of Appeal, do have mediation
processes
for such cases, and our court
has been encouraging parties to have
their appeals
mediated for a number of years, with occasional success. It is
noteworthy that
the Judges of Appeal in this state's new Court of Appeal have announced
in the
Court's first Circular to Practitioners on Arrangements
in the Court of
Appeal
that they "actively encourage parties to an appeal to consider
mediation as a
means of achieving a final resolution
of their dispute", and that "any
party who
is interested in participating in a mediation of that appeal should
contact the
Court
of Appeal Registrar".
Also, this paper is not by some one who
does mediations. Before joining the
Court I did indeed have a strong interest in ADR, stimulated
by the
rich
literature, principally (I must say) of its enthusiasts, and more
recently by
its not unsympathetic sceptics. A most
useful recent publication of the
latter
sort, in which (before my appointment in February) I would have taken
an
academic interest,
is the rightly praised monograph, by Professor Kathy
Mack (as
she now is), Court Referral to ADR: Criteria and Research
(2003). Now I
have the chance to observe the process from a closer vantage point.
Most importantly, I have access to the
people who do mediations for the
Court, and in this paper I drawn on discussions of their experience
I
have had
with some of them, and comments on earlier versions of this paper from
those and
others. I have particularly benefited
from a paper Registrar Sandra
Boyle did
for a Law Society of Western Australian Continuing Legal Education
Seminar,
Experiences of Mediation in the Supreme Court: What Salome was
Hiding
(2000).
I must acknowledge, however, that Judges in
my Court don't do mediations - at
least not formally. (I believe some of what we do, such
as acceding
readily to
requests to delay hearing starts, or adjournments, or, by contrast,
pressing
parties hard to trial, is in
fact in a similar vein, consciously
calculated to
enhance the prospects of settlement. But that is not mediation, and
reporting
on
it is for another day.) I note that there has been recent judicial
acknowledgement of the value of referrals to experienced mediators
in
the
judgment of Branson J of the Federal Court in Hopeshore
Pty Limited v
Melroad Equipment [2004] FCA 1445; (2004) 51 ACSR 259, at [32],
which sets out a view I
share.
Further, I do not deal to any extent with
what happens when the court refers
matters to person other than Registrars, under its
facility to do so,
returned to below. There may be very good reasons in particular cases
for such
referrals.
I do not explore such reasons here.
This paper is also not about other forms of
ADR than mediation that courts
might use. I am thinking here of conciliation,
counselling and
arbitration. There is of course use of something resembling the last,
under
our
powers to send matters to assessors, referees and arbitrators, although
there
are also important differences: see Supreme Court Act 1935
(WA),
ss 50 - 52, and Order 35. There is, however (so far as I am
aware), no
significant use of conciliation or counselling in our court: the
contrast is of
course with the Family Court of Western Australia.
2.
The Framework for Court
Referral to Mediation
There is, as I have said, an elaborate such
framework. I have set it out as
an appendix to this paper, which reproduces Part VI of the Act, and
Order 29
rules 2 and 3 (edited), as well as Order 29A, rules 3, 6, 7 and 8 and
Order 43
rule 16 (also edited). The Chief Justice's paper provides the history
of this
framework.
Four aspects of the framework are worthy of
particular note.
First, the Act was fairly recently amended
to enhance protections for our
mediators after case-law had revealed some causes for concern:
see Act,
s 71(4).
Those causes had to do with the compellability of mediators to give
evidence
about the conduct of the mediation, with all of its
potential to chill
the sort
of exchange that mediation typically requires. For the position before
the
change, see WJ Green & Co v Wilden
Library No 970186, 1996,
Parker J.
Secondly, as Order 29 rule 2 clearly
indicates, mediation is not restricted
to resolution of the parties' dispute, but can include,
for example,
mediation
of the differences between experts with a view to narrowing the points
of
difference between them: see Order
29 rule 2(s), and the common form of
order as
to expert evidence in Common Form 80, on which see Paul Seaman, Civil
Procedure Western Australia, [29.3.2] and [31A.14.2]. I say a
little more
about this distinction below.
Thirdly, the court does not need to refer
the matter to mediation before a
Registrar - but the advantage of one is that the parties
do not have to
pay fees
for them, and there also some less obvious ones, returned to below: see
Order 29
rule 2(ra) and Order 29A
rule (3)(2)(k). There are indeed referrals to
other
mediators, ones that the parties consent to pay. However, the focus
here is on
mediation through a Registrar.
Fourthly and finally, as Order 29 rule
3(1)(b) makes very clear, both
the parties and their legal representatives are to
attend the mediation
session (subject to any directions). That common attendance is very
important,
as appears below.
3.
The Conduct of
Mediation by our Registrars - and the Lessons of Their Experience
Here I want to take you through the
process, in the order in which it plays
out. I also want to draw out the major lessons our Registrars
tell me
they have
learnt.
3.1.
Referrals
This can be by a Registrar, as part of a
case management order in one of the
conferences that case management involves under Order
29A, or it may be
by a
Judge or Master, towards the very end of that process, which is when,
in our
Court, a Judge or Master becomes
involved in case management. It is
very rare
that a Judge will order mediation during a trial, although it seems
clear that
there
is authority to do so.
For an example of a referral during a
trial, but by a judge of the District
Court, and of the sort of problem to which a referral
might give rise,
especially in such a case, see Ruffles v Chilman,
Library 9702464,
1997, Full Court. In that case the trial judge had exercised his powers
of
referral under Order 29 rule 2(q), after
hearing evidence from the
plaintiff. Subsequently it appeared that the judge had met with the
Deputy Registrar
appointed as mediator.
The mediator conveyed his view to the parties at
the
mediation that the trial judge had formed a view of the case. The Full
Court
overturned the judgment, on the basis of reasonable apprehension of
bias -
surely a most unfortunate outcome for an attempted mediation.
An important advantage of referrals from
our Registrars' experience seems to
lie in the fact that (if the matter is done differently
from
Ruffles) neither side has had to
propose it, or press for it to
occur, altogether apart from the relative cheapness and ease of
arrangement
represented by such mediation. The first-mentioned aspect saves any
'loss of
face' or bargaining disadvantage. Certainly, the research
shows that
there is
no clear-cut disadvantage, in terms of settlement
rates, of referrals
over voluntary entry into mediation. Rather, there are mixed results
shown by
the studies
so far: see Professor Mack's monograph, above, at p 4.
Mediations on referrals after litigation
has commenced seem to have another
advantage over earlier mediations. They occur against
a backdrop of
some
focussing on major points of difference between the parties, and some
demonstration of their preparedness to commit
resources to a
resolution. Mediations by a Registrar in such a setting carry with them
some of the
authority of the court that parties
may have sought through their
initiation of
proceedings. The experience is that their position appears to assist
the
Registrars in
managing the difficult exchanges that can occur in
mediations.
Of course, by the time litigation has begun
attitudes might have become too
entrenched, and investments in an adjudicated outcome
too large, to
make a
successful pre-trial mediation possible. But the very high overall
rates of
discontinuance of litigation - in
most courts, at least 90% of civil
cases begun
- seem to indicate that in all civil litigation
settlement is always
possible, if only to avoid unnecessary and ultimately fruitless
expenditures on
litigated outcomes
that may never materialise, because the money and
the effort
run out.
Referrals can indeed occur both shortly
after the writ is lodged and served,
and much later, as trial looms. Early referrals make
sense where
extensive case
development will only further harden attitudes, and where it is not
necessary to
a compromise to make
finer grained assessments of the case. Inheritance
matters
are frequently mentioned in this connection. At the other extreme, late
referrals make sense in more complex matters where the parties are less
heavily
invested, at least attitudinally, in a particular
position, but the
matters in
dispute needed that further development.
However, it also fair to say that referrals
make the least sense at any
stage in cases which combine irreducible limitations on the
ability of one
party to participate effectively, no authority in another party
to
settle the
matter, a public interest in a binding determination of the issues,
intense
conflict over what are seen as the case's
issues of principle, and
unsupportive
legal representatives. Yet even here mediated outcomes are not
impossible!
3.2.
Preparing for the
Mediation
Our Registrars' experience is that this is
a critical issue. Preparation is
too often not done well. It is also peculiarly the responsibility
of
each
party's legal representatives.
Preparation has three aspects: a realistic
assessment of the party's
case, preparation for the process of mediation, and
development of a
strategy for client involvement in the mediation.
One is the lawyer's sensible assessment of
the strengths and weaknesses of
the party's case. This is largely, if not entirely, reducible
to
knowing the
file, and in practice it is not where the difficulties tend to lie.
Rather, the presentation shortfalls lie in
another aspect of preparation for
mediation, that of the lawyer preparing the client (and
themselves) for
the
mediation process itself. This involves helping everyone appreciate the
possibilities for compromise.
A lawyer heading towards litigation
preparing a client for compromise may
seem an odd idea, however. The oddity is more apparent than
real,
however. Proper preparation for litigation involves a changing
assessment, of both
the realistic prospects for success, and the practicalities
(cost,
time, and fall-out) of the litigation process. In this sense, it is an
aspect
of knowing the file. But it is a particular aspect
of it, because
preparing a client for mediation should be a matter of the lawyer's sharp
focus on the downsides, and a sharing
of the fruits of that
reflection with the client. It is not to persuade the client to settle
on just
about any facially plausible
proposal. It is rather to help the client
appreciate the need for openness to the possibilities for compromise.
The preparation that is to help the client
reach that appreciation cannot be
restricted to the issues that are relevant to the litigation.
The legal
representatives must also undertake a careful and insightful analysis
of the
client's interests, as well as those of the
opponent. Clients (even
apparently
sophisticated ones) will not necessarily have undertaken that analysis.
The appreciation of the need for openness
to the possibilities for compromise
that is reached is one that involves the client having
thought about
what sort
of compromise they would be prepared to put forward, and to test it as
Registrar
Sandra Boyle in her paper
(above) suggests. If the person commending
the
compromise imagined themselves as the other party receiving it, what
would be
their
reaction? As Sandra also indicates, that appreciation also
requires the
client to recognise that a better compromise might in fact
come from
the other
party, or from the mediator.
There is a third aspect to preparation, as
I have said. Again, it stems from
the involvement of the legal representative, and is their
responsibility. It is
to work with the client on a strategy for the mediation that encourages
the
client to participate, for example,
in a joint opening. The opening, it
must be
stressed, is not for the benefit of the mediator and should not be
directed to
him or
her as if he or she were a judge listening to opening
submissions on the
first day of a trial. Rather, the opening should be directed
to the
other side.
The mediation is not about a contest between or even directed by the
legal
representatives. It is an exploration
of the ground for compromise, if
there is
such ground, using the particular contributions the legal
representatives and
the client
can bring to that exploration. Overall, this third aspect
emphasises
that the mediation is about the client's indispensable involvement
in
the
process.
The work on the design of a strategy has a
further benefit, for the legal
representative. It is to remind them that the mediation
session is as
much of a
commitment of time and energy as a trial - even if a mediation is much
shorter
than most trials (at least
in the Supreme Court, where the average
length of a
trial is now 5 days). Mediations before our Registrars typically begin
at 10:30
am and often run all day, to 4:15 pm. Those beginning in the afternoon,
at 2:15
pm, may well run into the late evening, say to 10:00
pm. Further, the
Registrars may see the appropriateness of a further conference, where a
solution
is beginning to emerge, but it
is one requiring more time to develop
and be
accepted.
3.3.
The Mediation
Itself
Registrar Sandra Boyle reports that she
begins each of her mediations saying
this, as reported in her paper (above), at p 2:
"This court takes the view that if a
dispute is capable of being settled the
court will make every effort to help you settle it."
This leads into the conduct of the
mediation, which is in accordance with the
well understood 'diamond' model. It has implications
for the way
mediation
conferences are listed and the insistence (captured in the rules, as I
have
indicated) on the personal attendances
of the parties.
In the 'diamond' model, as you probably
know, the parties present their
opening statements (through their legal representatives, and
themselves, as
above), at the apex of the diamond. This is followed by the discussion
of the
issues and the possibilities for compromise.
The model's process
concludes with
a convergence on the strongest possibilities for compromise.
The broad plane of the model's process is
the discussion of the issues and
the possibilities for compromise, which will occur with
everyone
present, and in
caucus sessions, by each side with the mediator, who will shuttle
between the
sessions. The involvement
of the Registrar as mediator is continuous,
and must
be, to be of value.
The Registrars report that good legal
representation manifests itself in this
plane in its measured empathetic advocacy, which reassures
the other side
it is being understood, communicates clearly and
simply the represented
party's interests, and manages the hostility that
preparation for
litigation will not have helped.
At the same time, the legal representative
is not the only person on their
side who is involved, nor even are they necessarily the
most important
advocate.
The client's presence and involvement are crucial - indeed both are, as
we have
seen, required in most cases. Most importantly,
there should be an
authority to settle present or readily to hand, if the process is to
have the
best chance of working as it should.
The solution that emerges from the diamond
model's process will ideally be
one that is well understood, and is accepted voluntarily
by all sides,
as
something with which they can go forward with satisfaction. A solution
satisfying to the parties in this sense is
of course the 'gold
standard', and is
something more than is necessary to withstand judicial review, it
should be
acknowledged: see
Pittorino v Meynert
[2002] WASC 76. But it is
the standard for mediations in our Court to whose attainment the Court
aspires.
It is sometimes said that at worst the
mediation in which the parties sought
unsuccessfully to resolve their underlying dispute will
have clarified
the
issues for their litigation. This, however, seems to be false to the
classical
model of mediation, as about the
parties' interests, and not their
issues. A
better identification, and narrowing, of the issues may indeed result.
But
having such
identification and narrowing as an aim going into mediation
between
the parties to resolve their dispute would seem to be unhelpful,
and
that seems
to be the experience. Such an aim would, however, be of the essence of
other
forms of mediation, such as that between
experts, to which I have
already
referred.
3.4.
The Upshot of the
Mediation
Following a successful mediation, another
of the advantages of mediation by
our Registrars may emerge. This is their ability to make
an order with
immediate enforceable effect: see Order 46 rule 16(2). But there are
other
possibilities.
Often the parties do not want to have the
disclosure on the record of the
sort an Order 43 rule 16(2) order represents. Also, and often
relatedly, what
the parties have agreed may not readily be captured in an order, as
where an
inheritance
dispute is settled by one beneficiary taking everything,
but sharing
the benefits with another claimant. And the mediation may not
issue in
a crisp
solution in any event, but rather in the outline of the basis for one.
In the sorts of situation just described,
the mediation may conclude in heads
of agreement being decided upon, and the legal representatives
going
away to
work on drafts of a deed of compromise. This has all the flexibility of
a good
agreement. It also offers confidentiality.
So far as the court is
concerned,
the conclusion of the deed will result in the parties consenting to an
order
that the action be
dismissed, with no order as to costs. There may be a
record
of the compromise kept at the court, but in a confidential form, in a
sealed
envelope. In all of this, the mediator, as we have seen, is a competent
but not
compellable witness.
3.5.
What
Form of Mediation Is This?
The process I have described, from the
experience of the Registrars on which
I have drawn, is at the least a robust form of mediation.
By this I
mean that
the Registrars are direct in inviting the parties to consider what
their
alternatives really are. If necessary,
they will suggest options for
the
parties to consider. This necessity may arise because of their
perception that
possible options
have not come from the parties. However, the necessity
may
rather arise because a Registrar perceives an option may be possible
one
only if
it is not suggested by either party, but by the Registrar. In either
case, if
an option is suggested by the Registrar, care
is taken to put the
option in a
way that does not constitute a recommendation. The usual formula is to
put the
option as a question:
“Would it work to do ....?”
While it is possible to debate whether or
not this is mediation in the
"classic" sense, it may at least be fitted within the terms
of one
widely used
typology of mediation, that of Professor Boulle, in his Mediation:
principles, process, practice (1996), at 28 - 30, read with
53. In those
terms, the model being employed here appears to be "settlement
mediation".
4.
Assessing Our
Experience (Whether It is "A Good Thing")
Assessing whether any mediation, and in
particular provision for
court-annexed mediation of the sort I have described, is worthwhile
is
a rather
more difficult exercise than it might seem. There is an extensive
literature to
this effect, most usefully summarised
in Professor Mack's recent
monograph, to
which I referred at the beginning of this paper.
In particular, one must be careful about
determining value from 'success
rates'. There are comparison problems - with unmediated settlements
that might
have occurred any way, and with litigation itself, where that might
have been,
from the standpoint of society at large,
or even the parties, a
superior outcome
- at least if an adjudicated result had been more
"readily"
(inexpensively, speedily) available.
It is undoubtedly true, on the literature
Professor Mack refers to (pp 2 -
7), that mediation of the sort our Court provides is associated
with
high client
satisfaction. But, to repeat, the issue is, "compared with what?"
That said, the base data from our Court are
impressive. These show that case
management, particularly in the form (see the Appendix)
developed by
1996, has
been followed by a significant reduction in the rate of entry of cases
for
trial. The rate has changed, for
the period 1992 to 1996, from a high
of 9.24%
(1993) and a low of 5.37% (1996) to the latest figures, for the period
1999 to
2003
(ignoring the transition period under new rules), of a high of
3.93% (1999)
to a low of 3.13% (2003). (These figures appear to be
of the same order
as the
corresponding figures, and at the lower end of the comparable ranges,
for other
Australian courts.)
This of course may not be due to
court-annexed mediation. In fact, as far as
I can tell, only about 400 cases annually in recent years
have been
referred to
mediation, where the number of new cases commenced each year has been
about
1600, many of which would of course
continue for some time before
court-annexed
mediation would be directed, but many of which would cease before any
question
of mediation
arose. However, the settlement rate for court-annexed
mediation in
this Court has been put at about 60%, which is line with data
from
other courts,
and is impressive, and suggestive. It almost certainly a significant
under-estimate of mediation's effect, however,
given the contribution
an
unsuccessful court-annexed mediation can make to a much later
settlement, and
the incidence of (voluntary)
mediation in other cases than the 400 or
so,
including mediation stimulated by (but not ordered under) the case
management
process
as that is described by the extracts from Order 29A below.
Further, it
seems likely that the percentage of cases that have not undergone
some
form of
mediation before trial is quite small. However, it should also be noted
that
all of the data in this paragraph are approximations,
as precise,
entirely
reliable statistics are not available in this as in many other areas of
court
administration.
Further, there is the confounding problem
of the emphasis in our Court on
case management having accompanied large-scale blow-outs
in case-loads
and
delays in producing litigated results. The blow-outs and delays and the
publicity they received may have produced
self-help solutions other
than those
the Court encouraged, but with the same effects. But data of the sort I
have
referred to for
this Court do not seem likely to be an artefact of a
coincidence
of market-generated solutions with a court-generated response to
the
same
problems. As Chief Justice Malcolm's paper (above) indicates, the Court
appears
to have been very well served indeed by
the response the court crafted,
including its court-annexed mediation.
And, to repeat, the research does show that
mediation of the sort that our
Court provides is associated with high client satisfaction.
This is not
all
there is to a modern system of civil procedure. But it is indispensable
to the
enterprise.
There is, however, a different
issue, one that is harder to address. That issue is why
court-annexed mediation of the sort I have described
has had the success I have indicated. Certainly, on the literature
Professor
Mack refers to, court compulsion to mediate, and the involvement as a
mediator
of a court officer, would appear to have significance,
if one that is
hard to
quantify. However, there does not appear to be empirical data which
would
readily permit us to assign relative
weights to those factors, or to
others,
such as court-annexed mediation's relative cost and ease of arrangment,
let
alone to make
finer grained determinations to permit comparisons of the
contributions made by different ways in which court-annexed mediations
might be approached. There would appear to be a
fertile field for
research in this area, one whose produce would be of great interest to
courts
like my own.
Appendix: the Framework
for Mediation in the Supreme Court
69.
Interpretation
In this Part, unless the contrary intention appears -
"mediation under direction" means
mediation carried out by a mediator
under a direction of the Court under and subject to the Rules of Court;
"mediator" means -
(a) a Registrar appointed by the Chief Justice to be a
Mediation Registrar
under the Rules of Court;
(b) a person approved by the Chief Justice to be a mediator
under the Rules
of Court; or
(c) a person agreed by the parties.
[Section 69 inserted by No. 27 of 2000 s. 18.]
70. Protection of mediator
A mediator carrying out mediation under direction has the
same privileges
and immunities as a Judge of the Court has in the performance
of
judicial duties
as a Judge.
[Section 70 inserted by No. 27 of 2000 s. 18.]
71. Privilege
(1) Subject to subsection (3), evidence of -
(a) anything said or done;
(b) any communication, whether oral or in writing; or
(c) any admission made,
in the course of or for the purposes of an attempt to settle
a proceeding
by mediation under direction is to be taken to be in confidence
and is
not
admissible in any proceedings before any court, tribunal or body.
(2) Subject to subsection (3) -
(a) any document prepared in the course of or for the
purposes of an attempt
to settle a proceeding by mediation under direction;
(b) any copy of such a document; or
(c) evidence of any such document,
is to be taken to be subject to a duty of confidence and is
not admissible
in any proceedings before any court, tribunal or body.
(3) Subsections (1) and (2) do not affect the admissibility
of any evidence
or document in proceedings if -
(a) the parties to the mediation consent to the admission of
the evidence or
document in the proceedings;
(b) there is a dispute in the proceedings as to whether or
not the parties
to the mediation entered into a binding agreement settling
all or any
of their
differences and the evidence or document is relevant to that issue;
(c) the proceedings relate to a costs application and, under
the Rules of
Court, the evidence or document is admissible for the purposes
of
determining
any question of costs; or
(d) the proceedings relate to any act or omission in
connection with which a
disclosure has been made under section 72(2)(c).
(4) A mediator cannot be compelled to give evidence of
anything referred to
in subsection (1) or (2) or to produce a document or
a copy of a
document
referred to in subsection (2) except -
(a) in proceedings referred to in subsection (3)(d); or
(b) in proceedings relating to a costs application where
there is a dispute
as to a fact stated or a conclusion reached in a mediator's
report
prepared
under the Rules of Court on the failure of a party to cooperate in the
mediation
and the evidence or document is
relevant to that issue.
(5) In subsections (3) and (4) -
"costs application" means an application
for the costs of the
mediation or of the proceedings to which mediation relates.
[Section 71 inserted by No. 27 of 2000 s. 18.]
72. Confidentiality
(1) Subject to subsection (2), a mediator must not disclose
any information
obtained in the course of or for the purpose of carrying
out mediation
under
direction.
(2) Subsection (1) does not apply if -
(a) the disclosure is made for the purpose of reporting under
the Rules of
Court on any failure of a party to cooperate in a mediation;
(b) the disclosure is made with the consent of the parties;
(c) there are reasonable grounds to believe that the
disclosure is necessary
to prevent or minimize the danger of injury to any person
or damage to
any
property; or
(d) the disclosure is authorised by law or the disclosure is
required by or
under a law of the State (other than a requirement imposed
by a
subpoena or
other compulsory process) or the Commonwealth.
[Section 72 inserted by No. 27 of 2000 s. 18.]
Rules of the
Supreme Court
Order 29 - Case Flow Management:
Powers of the Court
...
2. Court may review any case
(1) In any proceedings the Court may at any time of its own
motion on notice
to the parties or upon the hearing of a summons for directions
or other
application review the progress of the proceedings and make such orders
or give
such directions to lead to their efficient
and timely disposal as it
may
consider just and expedient and, without limiting the generality of
that power,
may -
(q) on any terms suitable, direct at any time that the parties
confer on a
"without prejudice" basis for the purpose of resolving
or narrowing the
points
of difference between them;
(r) direct that a -
(i) Registrar appointed by the Chief Justice to be the
Mediation Registrar;
or
(ii) person approved by the Chief Justice to be a mediator,
may conduct the conference;
(ra) in relation to a conference conducted by a mediator,
give such
directions as it considers just and expedient but shall not,
without
consent of
the parties, direct that a conference take place where a party would
become
liable to remunerate a mediator;
(s) direct that experts, whose reports have been exchanged
pursuant to Order
36A consult on a without prejudice basis, for the
purpose of narrowing
any points of difference between the experts and identifying any
remaining
points of difference;
and
...
(2) A direction that parties attend a mediation conference
does not operate
as a stay of proceedings, unless otherwise ordered.
3. Mediation conferences
(1) In the absence of any other order -
(a) mediation conferences will take place at the time and
place as
directed;
(aa) each party shall, subject to any directions, take such
steps as may be
necessary to ensure that the mediation conference occurs
as soon as
possible;
(b) each party shall attend the conference or if a party is
not a natural
person, a representative of that party familiar with the
substance of
the
litigation and with authority to compromise it, and the solicitor or
counsel, if
any, representing each party;
(ba) each party's costs of and incidental to a mediation
conference shall be
the party's costs in the cause, unless it is ordered
otherwise or the
parties
agree; but a party may apply for those costs if they have been
unnecessarily
incurred due to the conduct
of the other party;
(bb) the fees and expenses of any mediator who is not a
Mediation Registrar
shall be paid by the parties in equal shares, unless
it is ordered
otherwise or
the parties agree;
(c) within 2 weeks after the conclusion of the conference,
the plaintiff
shall lodge with the Court a report, signed by or on behalf
of each
party -
(i) confirming that the conference has occurred as directed;
and
(ii) recording the substance of any resolution or narrowing
of the points of
difference between the parties resulting from the conference.
(2) A Mediation Registrar or a mediator -
(a) shall not, unless the parties agree, report to the Court
on a mediation
conference;
(b) whether or not the parties agree, may report to the Court
on any failure
by a party to cooperate in a mediation conference; but
the report shall
not be
disclosed to the trial judge except for the purposes of determining any
question
as to costs.
[Rule 3 inserted in Gazette 26 March 1993 p.1843;
amended in Gazette 20
April 1993 p.2104; 28 October 1996 pp.5682-3.]
Order 29A - Case Management
...
3. Case management directions
(1) A case management direction is a procedural direction for
the purpose of
leading to the efficient and timely disposal of the proceedings.
(2) A case management direction may —
...
(j) direct any or all of the parties to confer on a
“without
prejudice” basis for the purpose of identifying, resolving
and narrowing
the points of difference between them;
(k) direct that a conference directed under subparagraph (j)
be conducted by
a mediator; but shall not, without the consent of the
parties, direct
that a
conference take place where a party would become liable to remunerate a
mediator;
...
...
6. Status Conference
...
(5) At the status conference the Case Management Registrar is
to review the
documents on the Court file and inquire into these matters:
...
(f) whether a conference of the parties with a mediator is
needed and if so,
when;
...
7. Case Evaluation Conference
...
(4) At the case evaluation conference the Case Management
Registrar is to
review the documents on the Court file and inquire into
these matters:
...
(b) whether a conference of the parties with a mediator is
needed and if so,
when;
...
8. Listing Conference
...
(3) At the listing conference the Judge may review the
documents on the Court
file and inquire into these matters:
(a) whether the case can be settled;
...
Order 43 Drawing Up Judgments and
Orders
...
16. Consent orders
(1) The parties to proceedings or their solicitors may file a
written
consent to the making of an order in those proceedings ...
(2) Upon the written consent being filed, the Registrar may
settle, sign and
seal the order without any other application being made
in any case in
which in
his opinion the Court would make such an order upon consent of the
parties or
may bring the matter before
the Court which may, if it thinks fit and
without
any other application being made, direct the Registrar to settle, sign,
and seal
the order in accordance with the terms of consent.
(3) The order shall state that it is made by consent and
shall be of the
same force and validity as if it had been made after a hearing
by the
Court.
[Rule 16 inserted in Gazette 3 October 1975 p.3769;
amended in Gazette 26
March 1993 p.1845; 28 October 1996 p.5699.]
Form 80 — Expert Evidence Order
(1) The parties have leave to adduce expert evidence at the
trial.
(2) By the plaintiff provide the defendant with a copy of the
report
or the substance of the evidence of any expert witness whose
evidence
is to be
adduced by the plaintiff.
(3) By the defendant provide the plaintiff with a copy of the
report
or the substance of the evidence of any expert witness whose
evidence
is to be
adduced by the defendant.
(4) A copy of the report or the substance of the evidence of
any expert
witness shall include the name of the witness, the facts and
matters
relied upon
to qualify him to give expert evidence, and shall identify the facts
and other
material upon which he bases his
opinion. The witness must include in
the report
or in some other writing submitted to the Court before or when the
evidence is
formally
tendered at trial a statement to the effect that the witness
has made
all inquiries which the witness believes are desirable and
appropriate
and that
no matters of significance which the witness regards as relevant have,
to the
knowledge of the witness, been
withheld from the Court.
(5) By if there are differences between the evidence of the
respective
expert witnesses a conference shall be held between them in
the
presence of the
solicitors for the parties for the purpose of narrowing or removing the
differences.
(6) If following the conference points of difference remain
between the
expert witnesses the solicitors for the parties and the expert
witnesses shall
attend a mediation conference before a mediation registrar at a time
and place
to be determined by him and the plaintiff
shall contact the associate
to the
registrar no later than to make arrangements for such a conference.
(7) Three (3) working days before the conference the plaintiff
shall
lodge with the registrar's associate copies of the expert evidence
as
exchanged
together with a note of the points of difference outstanding between
the
experts.
(8) By the plaintiff shall file and lodge with the associate
to the
judge making this order, a report signed on behalf of each party:
(a) confirming that the conference has occurred as directed;
and
(b) recording of the substance of any resolution or narrowing
of the
points of difference between the experts resulting from the conference.
[Common Form 80 am Practice Direction No 1 of 1999]
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