The concerns raised above regarding judicial mediation and the risk that public confidence in the judiciary will be impaired as a result are clearly important considerations. However, many jurisdictions in Australia, including in Victoria, promote the just, quick and cheap resolution of the real issues in the proceedings.488 If courts are perceived by the community to
deal with disputes in a way that is efficient in terms of time and cost yet still provide for just outcomes that include the use of ADR and adjudication, public confidence in the courts can still be maintained.489
Spencer suggests that Chief Justice Spigelman has indicated there can be ‘no loss of confidence’ in the judicial institution should courts support judicial mediation, providing that ‘the judicial and non-judicial roles of the court are kept separate and the public are educated in accepting the emerging role of the court in providing a just, cheap and quick resolution of the real issues in the proceedings’.490 Similar views have been
expressed by others.491
Settlement conferences that involve all parties where private sessions do not take place do not raise the same concerns,492 although there may be difficulties where
privileged or otherwise confidential information is disclosed on a without-prejudice basis. In this event, and in the case of mediations where private sessions do take place, the statutory requirements of confidentiality should ensure that judicial mediators do not disclose what took place at mediation.493
Confidentiality requirements could be reinforced with
appropriate court practices and additional education measures. Commentators also note that the same confidentiality concerns are not raised where judges excuse themselves from hearing a case based on apprehended bias.494
The commission is of the view that parties and lawyers are likely to benefit from additional education programs about how judicial mediation operates and the importance of mediation as an integral part of the court’s process of resolving disputes.
The commission recognises that it is important to ensure that the adjudication of proceedings and the processes of mediation are independent of each other. The mediator should not adjudicate the case if it goes to trial, unless the parties consent. This is in line with the position in other courts’.495
Judicial officers and others involved in mediation are protected by the general immunity from suit contained in legislation496
and would presumably be immune from suit in any event.
470 Sir Laurence Street ‘Note on the Detachment of Judges to Mediation’ (2006) 17 Australasian Dispute
Resolution Journal, 188. See the
discussion in Chapter 1 regarding impartiality.
471 Submission ED1 7 (Judge Wodak). 472 Cannon (2002) above n 431, 259. 473 Sourdin (2005) above n 6, 268. 474 Submission CP 35 (Institute of
Arbitrators and Mediators Australia and the Chartered Institute of Arbitrators). There are however various statutory and other legal constraints on actions against mediators generally and judges in particular.
475 Chodosh (1999) above n 384. 476 Submissions CP 48 (Victorian WorkCover Authority), CP 33 (Victorian Bar), CP 35 (Institute of Arbitrators and Mediators and the Chartered Institute of Arbitrators), CP 18 (Law Institute of Victoria). Crown Counsel (2006) above n 455, 17. 477 Submissions CP 48 (Victorian
WorkCover Authority), CP 33 (Victorian Bar), CP 35 (Institute of Arbitrators and Mediators and the Chartered Institute of Arbitrators), CP 18 (Law Institute of Victoria). 478 Submission ED1 7 (Judge Wodak). 479 Submission CP 33 (Victorian Bar). See
also Astor and Chinkin (2002) above n 45, 268.
480 Ervo (2007) above n 448, 474. 481 Sourdin notes that in the US, the
combining of judicial and mediator functions has led to unease as a result of the style of mediation adopted by some judges: Sourdin (2005) above n 6, 112. Sir Laurence Street has made similar observations: Street (1997) above n 469, 796.
482 Submission ED1 31 (Law Institute of Victoria).
483 Chodosh (1999) above n 384. 484 See the following articles for a
good discussion of the arguments regarding the constitutional validity of judicial mediators: Spencer, Part I (2006) above n 387, 135–9; Spencer, Part II (2006) above n 439, 189–99; Spencer, ‘Judicial Mediators: Are They Constitutionally Valid?’ (2006) 9(4)
Alternative Dispute Resolution Bulletin
61; Justice Michael Moore, ‘Judges as Mediators: A Chapter III Prohibition or Accommodation?’ (2003) 14
Australasian Dispute Resolution Journal
188; Tucker (2000) above n 469, 84 (referring to Grollo v Palmer (1995) 184 CLR 348).
485 Moore above n 484; see also Sourdin (2005) above n 6, 113.
486 Ibid, 90.
487 Tania Sourdin, ‘Facilitating the Resolution of Disputes Before Tribunals’ (Paper presented at the 8th Annual Australian Institute of
Judicial Administration (AIJA) Tribunals Conference, Sydney, 9–10 June 2005).
4
Chapter 4
Improving Alternative Dispute Resolution
Judicial mediation, like other forms of mediation, may be time-consuming and resource-intensive. However, a reduction in the number of cases required to be tried, the curtailment of interlocutory applications and the more expeditious resolution of disputes may justify the allocation of judicial resources to mediation and other forms of ADR.
Although there are variations in experience, aptitude and skills the commission does not have any reason to consider that judicial officers do not have the requisite ability to successfully conduct mediations or ADR processes generally. If there are doubts about a judge’s mediation skills or style, additional education and training will no doubt assist in the development of mediation skills.497
As to the concern that parties do not get to choose their mediator, at least with judicial mediation there are no arguments over the choice of mediator. Alternatively, parties may opt to engage an external mediator of their choice, at their expense.
Although the commission favours the increased use of judicial (and other forms) of mediation and ADR there are important resource issues to be considered. The Supreme Court and Magistrates’ Court indicated in their submissions that they would prefer to undertake more court-conducted mediation but that this was not possible due to a lack of resources.498 The Supreme Court said:
Restrictions … have targeted the scarce resources of Masters at cases of most need. Many cases that could have benefited from Master Mediation have not received that attention.
In these circumstances, the commission considers that suitable matters for direct involvement of judicial officers in ADR might include those cases where private mediation is unsuitable or unavailable, such as where:
one of the parties is in financial hardship
• 499 and/or self-represented
the parties are unable to agree on a choice of mediator •
there has already been an unsuccessful external mediation •
the case is of public interest or is highly complex and could benefit from a mediator with •
court authority.500
Given the resource issues, the commission agrees with the views expressed in the submissions that persons other than judges should also be involved in the conduct of mediations, as is the case at present. Telstra and the Australian Corporate Lawyers Association suggested in their submission that judicial mediation should not be limited to judges.501 They felt that thought should be given to
ensuring the various court personnel are used in the most effective manner:
[T]here seems to be scope to reengineer the court processes and reallocate work from judges to associates, registrars and masters, which would enable judges to focus their time more effectively on trials and writing judgments.
The Transport Accident Commission, Michael Redfern, the Mental Health Legal Centre, Hollows Lawyers, the Law Institute, State Trustees and Judge Anderson were all supportive of court-conducted mediation where such mediations are conducted by persons other than judges.502 Court-conducted
mediation by such persons is also appropriate because they will not be presiding over any hearing should the mediation or other form of ADR fail. This also allows judges to focus on adjudicating. However, it is a matter for the courts to decide who should conduct court ADR processes.503
5.6 CONCLUsIONs aND ReCOmmeNDaTIONs
There is no consensus on whether the judicial role should encompass mediation in Australia.504 There
are strong views for and against judicial mediation. The case for the deployment of judicial officers as mediators arises in part out of increasing support for the use of ADR and out of changing perceptions of the role of courts. Courts are now more proactively involved in seeking to expedite the resolution of disputes using a variety of adjudicatory and non-adjudicatory methods.505
One commentator suggests that the appointment of judicial mediators should assist the process of removing matters on the ‘trial trail’ that have the potential to settle.506 Others suggest that preventing
the use of judicial mediation may be counter-productive—it presents a barrier to the adoption of more flexible and facilitative processes in litigation.507 Despite such divergences of viewpoint, judicial officers
are becoming more involved in both facilitating and conducting mediation in courts in Victoria and in other jurisdictions.
The commission supports judicial mediation. There are however, a number of practical, legal and resource issues that need to be addressed. Relevant skills and training are of obvious importance and are discussed further below. Judicial officers should not be involved in both mediation and adjudication in the same matter, unless the parties consent. The demands of adjudication are likely to continue to place constraints on the deployment of judges as mediators. It remains to be seen whether the commission’s proposals on various matters dealt with in this report will, if implemented, have a significant impact on the number court proceedings, on the management and conduct of cases and on the incidence of settlement between the parties without third party involvement. If the proposed reform measures achieve the intended effect of significantly reducing the volume of litigation and increasing the ‘natural’ incidence of settlement in matters that proceed to litigation, then this will reduce the burden on the civil courts. In the absence of either a decrease in the adjudicative demands placed on the courts, or an increase in resources, court-conducted mediation in the higher courts is likely to continue to be conducted by masters, registrars and judicial registrars rather than judges.508
The commission agrees with the view of the Australian Institute of Judicial Administration that the statutory obligation of confidentiality binding on a mediator, and the withdrawal of the judge from the trial or appeal if the mediation fails, should enable judges to act as mediators without detriment to the public’s expectations of the judiciary.509 Many litigants are likely to support more proactive judicial
involvement in ADR.
High-quality mediation training for judges and all court staff involved in mediation or referral to mediation is necessary. Mediation training can usefully complement judicial skills.510 As NADRAC
notes, most judicial officers would have received their training and experience within an adversarial litigation culture. NADRAC considers that there is value in judicial officers undertaking training and education in non-adversarial approaches.511 Michael Redfern suggests that judicial officers should be
encouraged to undertake courses in the philosophy and culture of ADR.512 With proper education and
training, judicial officers can improve their skills in ADR, including mediation. Regular updating of skills and knowledge is also important.
The commission notes that from 1 January 2008 new voluntary National Mediator Accreditation Standards came into existence. This new scheme is an industry based scheme which relies on voluntary compliance by mediator organisations (Recognised Mediator Accreditation Bodies) that agree to accredit mediators in accordance with the standards.
Lawyers would also benefit from additional education about ADR, including judicial mediation. Consideration should be given to the monitoring and evaluation of court-conducted mediation. As the Transport Accident Commission pointed out, there is relatively little empirical research about the effectiveness of mediation in the Victorian court system and its success in resolving matters earlier.513
Conclusions may be difficult to draw in the absence of well-designed and methodologically sound studies. This may require the randomised allocation of similar cases to ‘ADR’ and ‘non ADR’ tracks dealt with by the same judicial officers. The proposed Civil Justice Council should conduct an ongoing review of ADR processes in the Victorian courts, including court-conducted mediation.