Conciencia y trascendencia

The commencement of litigation does not preclude the parties coming to a resolution by ADR. however, there are benefits to commencing any ADR process early on in the litigation process. Research on ADR shows that the prospects of successful, non‑court resolution are higher for new disputes than for matters that have been in dispute for some time.

The Sourdin report on mediation in the victorian Supreme and County courts showed that mediation in those courts was taking place significantly after filing—about 76 per cent of the way through an expected full case duration.222 _{In the victorian Supreme Court the mean number of}

days from filing to first mediation was 324 days. While mediation late in the process may benefit

218 _{ministry of Justice (uk), Alternative Dispute Resolution: annual pledge report 2007–08, p 2. A copy of the full pledge is}

extracted at page 2 of the annual pledge report.

219 _{Ibid p 11.}

220 _{Ibid p 6.}

221 _Ibid.

from availability of information to allow an informed choice, Sourdin found that earlier action meant that disputes are more likely to be finalised at mediation than for older disputes.223 _Early

mediation also has the advantage of occurring before significant litigation costs have been incurred. It also avoids the problem of parties becoming too invested in a dispute by the time an opportunity to settle it arises to make a considered decision about settlement.

The Sourdin report demonstrates that the quality of an ADR process and its capacity to involve the parties is crucial.224 _{Some processes described by lawyers as mediation are more akin to competitive}

negotiations between lawyers, with little or no involvement from the parties. The format of mediation often seemed to be chosen for its appeal to the representatives rather than the litigants. most parties to disputes indicated that they would have liked to have participated more. Equivalent material on mediation in federal court proceedings does not appear to be available.

ADR should be considered a standard practice in civil litigation, both before and after filing a dispute.225 _{In approaching ADR policy, the Taskforce considers that:}

appropriate referral to ADR is a core component of court process

•

central to the process of active case management should be consideration by the judge and the

•

parties of the best method of resolving the dispute

early ADR is often most effective in resolving disputes, and in minimising costs, and

•

the benefits of ADR extend beyond the resolution of disputes to the narrowing of issues for

•

ultimate determination.

The Federal Court, Family Court and FmC have all adopted a docket system for individual cases with a view to narrowing the issues in dispute, requiring fewer events in the litigation process and ensuring that cases more suitable for ADR are easily identified. The docket system also enables the judicial officer assigned to take an active role in the management of the case, with a view to promoting settlement as a preferred outcome.

The proposal to include consideration of attempts to resolve disputes when deciding liability for costs aims to have parties think early about options for resolution by including the potential for adverse cost consequences if they do not.

RecommendATIon 7.6

Before preparing to litigate, disputants and their legal advisers should attempt to resolve the matter through an ADR process or direct negotiation where appropriate. The Attorney‑General should work with federal courts and professional bodies to ensure that procedural and professional requirements reflect the expectation that parties have considered resolving the matter outside the court process prior to commencing litigation.

The expectation that parties will have attempted to resolve matters through ADR and negotiation should apply to self‑represented litigants.

Action; Triage; Outcomes.

223 _{Ibid p 65.}

224 _{Ibid pp iii–iv.}

225 _{The issue of whether ADR should be mandatory are complex as they may impose costs and may be not be effective. NADRAC}

Chapter 8: Court based dispute resolution

The federal courts and access to justice

Key points

In the quality of judicial decisions, and in the conduct and management of actions brought before them, courts have a central role in ensuring fair, simple, affordable and accessible justice.

The essential judicial function is to declare (and enforce, where required) the state of the law in disputes between parties who have standing to bring the issue before the court, in so doing creating or altering legal rights. however, the impact of the courts on access to justice goes beyond the processes that take place in the courtroom after filing. The court process can also frame parties’ decisions about dispute resolution pathways through:

court expectations of parties’ behaviour (both before and after filing)

•

the cost and time risks inherent in proceeding with litigation if other dispute resolution

•

options fail

court procedures prior to final hearing (for example discovery, pleadings), and

•

the courts’ power to issue binding final decisions in the absence of agreement between

•

parties to a dispute (as a barrier to obstructive or bad faith behaviour).

Improving access to justice in the federal courts requires changing the culture of the courts, parties and lawyers from an adversarial system to one where effort and resources are directed to resolving disputes at the earliest opportunity and at a proportionate cost. Better dispute resolution will require:

early and substantive attempts to resolve disputes being built into the court process, including an increased emphasis on the right pathway to resolution

early and proportionate exchange of information and evidence, and early evaluation of

•

the real issues in dispute by parties and the court

changing court processes to ensure that all steps in the process are aimed at resolving the

•

dispute, including:

amending the legislation and legislative instruments relating to court procedure to −

reflect the fact that most civil disputes, including the majority of those filed with the courts, do not require final adjudication, and

an explicit expectation that judges will actively manage matters to resolution, −

The access to justice potential and risks of specific types of litigants and types of litigation should also be considered, in particular:

the scope for self–represented litigants to participate effectively in the court process

•

the capacity for public interest litigation and class actions to improve access to justice, and

•

the negative impact of excessively litigious parties and unmeritorious claims in imposing

•

disproportionate costs and undue complexity in the resolution of disputes.

most disputes are resolved without assistance from a court or a lawyer. however, there are a number of complex disputes for which court resolution is necessary. As indicated in Part I of the report, the court system is the most significant cost component of the justice system, in terms of the costs of the courts, and the cost of providing legal assistance to disadvantaged Australians who appear in court.

This report emphasises strategies to resolve disputes without resort to courts. This Chapter is concerned with disputes for which court resolution is necessary, and strategies for reducing the cost and complexity of court resolution in those cases.