MEDIATION MEDIATION IN Alternative dispute resolution There have been perhaps two AUSTRALIA (including arbitration, mediation principal drivers for the popularity and conciliation) in Australia of mediation in Australia. The first Monica Del-Villar has a long and distinguished is the perceived benefit of using Mallesons Stephen Jaques history. The framers of Australia’s flexible negotiation processes federal constitution expressly to address complex technical included ‘conciliation’ as a issues. In fields such as building head of legislative power for the and construction, this is an resolution of industrial disputes. important motivator because In turn, alternative dispute it reduces the risk involved in resolution processes underpinned submitting fine factual disputes Australia’s workplace relations to the rather blunt remedies system throughout the 20th available at law. In commercial century, and thus played a key markets such as construction, role in some of the most bitterly– where there are increasingly few fought legal battles Australia has significant players following a witnessed. decade of mergers and corporate rationalisation, mediation also THE DEVELOPMENT OF has the advantage of preserving MEDIATION IN AUSTRALIA relationships for the future and Australia is a federation of six minimising publicity. States and a number of Federal The full–scale trial can no longer Territories. It was formed in be regarded as the paradigm 1901. By virtue of its British method of dispute resolution, colonial origins and lessons even for complex disputes from the American experience involving subjects of high value of the 1800s, it has a legal ... alternative means of dispute system that mixes elements resolution, conducted pursuant of the Westminster and United to the private agreement of the States constitutional systems. parties, can be expeditious, In particular, like its American flexible and tailored to particular counterpart, the Australian needs.: Sir Gerard Brennan, judicial system comprises a former Chief Justice, High Court federal branch and separate of Australia. institutions in each of the States, each with its own administrative The second driver of mediation culture and traditions. This is in Australia has been the courts’ important when examining the determination to use ADR for extent to which alternative dispute the purpose of relieving strains resolution (ADR) is accepted (both in terms of time and cost) and implemented in Australia, generated by steadily–increasing particularly since courts are rates of litigation. In a concerted increasingly taking the lead in attempt to counter these referring disputes to mediation pressures, the courts today exert and expert consideration. In the much greater control over the field of building and construction formal processes of litigation. litigation, for instance, the use of Judicial administration of case mediation is increasing rapidly lists is now common. Largely and is now firmly established as gone are the days when cases a preferred dispute resolution drift towards trial in accordance tool. It is now rare to have a with court rules whose application case proceed through the lower depends on the diligence of Australian courts unless the case practitioners. Now the courts has first been to mediation or supervise their processes through pre–hearing conference. the use of regular opportunities for setting timetables as to pleadings, discovery or disclosure 34 AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #105 NOVEMBER/DECEMBER 2005 of documents and the filing of for greater emphasis on ADR ‘Autumn Offensive’ settled at evidence. In appropriate cases, in Australia. In the mid–1980s, mediation.4 key steps such as pleadings commercial lawyers awoke to the Mediation is also a key form of and discovery may be excised benefits of mediation and began private dispute-resolution at the altogether from the process. to influence the development of federal level in Australia. For More and more Australian courts ADR regimes. As a result, in 1986 example: are requiring mediation at an we saw the establishment of the early stage, before massive legal Australian Commercial Disputes • Family Law Act 1975 (Cth) cost is incurred, to seek a more Centre, and in 1989 a private (Family Law Act) s16A—The Court economical and rapid resolution network of practitioners formed must, if it considers it is in the of disputes. Lawyers Engaged in Alternative best interest of the parties or their children to do so, direct or The process of adoption of Dispute Resolution (LEADR). The membership of LEADR had advise either or both parties to mediation prior to trial has been attend counselling. assisted by a recognition among increased from 815 in 1993 to governments at all levels that the 1385 in 1996 and 1822 in 1999 • Federal Court of Australia Act (including approximately 500 New 1976 (Cth) s53A—The Court may courts need help to reduce the 3 backlog of cases. Indeed, the rush Zealand members). order a proceeding, or any part by governments to introduce ADR The government firmly believes of a proceeding, to a mediator procedures into the traditional that mediation and alternative for mediation, with or without legal system has been described dispute resolution should be the the consent of the parties to the as a ‘legislative avalanche’.1 norm rather than the exception.: proceeding. It started in New South Wales Daryl Williams, Attorney-General In 1991, the Courts (Mediation and (NSW), Australia’s most populous for Australia, Press release dated Arbitration) Act was introduced, State, when in 1980 a Community 6 April 1998. facilitating court–sponsored Justice Centres (Pilot Projects) Australia’s second–largest State, mediation and arbitration in the Act was introduced. Under Victoria, was only slightly behind courts of federal jurisdiction, the Act, infrastructure was NSW in adopting mediation namely the Federal Court and established for the mediation as a central plank of its legal Family Court. In the Federal of small civil and criminal system. In 1983, mediation was Court, forms of ‘assisted’ dispute disputes by specially–trained implemented into the rules of resolution such as mediation mediators. This experiment the Building Cases List of the are typically undertaken with in state–sanctioned private Victorian County Court (the court the involvement of a Registrar mediation, designed to reduce immediately below Victoria’s or Justice of the Court, and if the number of proceedings filed superior court, the Supreme a mediation is successful, the in the lower NSW courts, was Court). In 1992, with a new State outcome is reflected in orders of subject to a sunset clause giving government and Attorney– the court. The court has reported it a three–year opportunity to General, the Supreme Court that between 1994–95 and 1998– demonstrate its worth. In 1983 commenced a ‘Spring Offensive’ 99, an average of 220 matters the project was made permanent. to reduce its list of cases, a key were referred to mediation5 each Significant investment was component of which involved the year, with 347 matters referred to undertaken in the establishment reference of 250 proceedings to mediation in 1998–99.6 and maintenance of Community mediation before senior legal VIEWS ON THE SUCCESS Justice Centres to facilitate practitioners throughout the the greater emphasis given to State. This was an important step OF MEDIATION IN mediation in the NSW justice in bringing ADR to the attention AUSTRALIA system. Now, the Community of Victorian lawyers and judges, Mediation in Australia has Justice Centres can be used for and was supported two years undeniably been very successful the resolution of neighbourhood, later by an ‘Autumn Offensive’, in resolving disputes. While family, environmental and which saw the reference of a reliable statistics about employment disputes. In the further 150 matters to mediation. this are notoriously difficult State of Queensland, by 1998 By that stage, many legal to locate (since they may there were 28 different Acts or practitioners had participated exclude settlements after an Regulations which provided for ‘unsuccessful’ mediation, to 2 in mediation training practices, ADR, typically mediation. so that mediations had become which the mediation process It is not just courts and considerably more sophisticated. contributed), it is clear that governments that have pushed 79.35% of cases subject to the AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #105 NOVEMBER/DECEMBER 2005 35 success rates have been some instances the parties also Commission (ACCC) argued that significant. In particular: agree that the Court should only law enforcement agencies should • the Victorian Supreme Court’s be asked to determine liability or not be subject to compulsory ‘Spring Offensive’ produced a quantum.: Federal Court, Annual mediation. The ACCC has the success rate of 54% (according to Report 1998–99. role of enforcing Australian competition and consumer a study completed the following Despite the high rate of success, year);7 protection laws at the Federal doubt has been expressed level. The ACCC said that many of • recent studies conducted by the in some quarters about the its cases may have precedential Building Lists of the State courts effectiveness of mediation value and are brought for that indicate a settlement rate above in relieving the caseloads of purpose. In those circumstances, 75%;8 traditional courts and providing compulsory mediation may a cheaper recourse to justice. • according to Managing Justice, sometimes