Mediation orders could limit access to justice
A Federal Court judge has voiced concerns that a law requiring parties to mediate before going to court could present a constitutional issue due to disproportionate resources among parties.
Justice Steven Rares was one of four distinguished speakers at a panel discussion at the Federal Court on Tuesday night (12 June) entitled: Fitting the Forum to the Fuss - ADR: More than Mediation? Examining the ADR Toolkit.
Facilitated by Steve Lancken (pictured) of The Trillium Group, speakers Geri Ettinger, a senior member of the Administrative Appeals Tribunal; Jeremy Gormly SC, the chair of the National Alternative Dispute Resolution Advisory Council, and Stuart Westgarth, a partner of HWL Ebsworth Lawyers and the immediate past president of the NSW Law Society, joined Rares in examining when and why ADR mechanisms are appropriate and their value in large and small disputes.
The Civil Dispute Resolution Act 2011, which was assented on 12 April 2011, was a topic of hot debate as the panel and members of the 60-strong audience debated the efficiency of the legislation, which requires parties to take “genuine steps” to resolve disputes before certain civil proceedings are instituted.
“Why should people be stopped from coming to court because some law says you’re not entitled to it?” asked Rares.
“A constitutional question immediately arises about that as people who have a large purse or a large amount of venom will string disputes out and put the other at as much expense as possible [to spend] resources [they need to file in court] on, among other things, a mediation that the other side is determined will fail.”
“You can’t always see [that abuse] as a judge, you don’t know what’s going on beneath the surface but it concerns me that … people can’t get their case because they run out of money.”
Family lawyer Sandra Hale, of Redmond Hale Simpson Solicitors, agreed, and said that in some courts this is exactly what happens.
While she acknowledged nobody would argue with the philosophy behind mediating before you are allowed to go to court, she said resources must be provided across the board for many centres to provide that mediation.
“Different levels of mediation that you can access at different costs [are needed] because what happens [otherwise] is the dispute lingers, not for one month or two months; for six, seven, eight months, and the person who has an interest in elongating that dispute wins … by the time you get to court it is so entrenched,” said Hale.
Gormly defended the merits of the Civil Dispute Resolution Act 2011, highlighting that “it does not require anybody to incur the cost of mediation” or any process of discovery or pleading preparation.
Examples of “genuine steps” that might be taken under the Act include merely notifying the other person of the issues that are or may be in dispute and offering to discuss them with a view to resolving the dispute, Gormly explained.
“If you do that and you write it on a piece of paper and file it with your pleading … then you’ve done all the act requires of you,” he said, adding that genuine-step statements being filed in courts at present are between half a page and three pages in length.
“It’s not onerous, it’s not expensive and all it needs to say is: ‘I wrote to the person. I told them what the dispute was about. I said I’m happy to talk, surely we can solve this, and he wrote back go to hell, see you in court’. If that’s what occurs a judge might well have an interest in that at the end of the day.”
Rares said he has seen people argue about what a genuine-steps statement is during direction hearings, which he said was “a particularly useless exercise”.
He, like Hale, observed that once parties are in an involuntary situation in court and mediation is ordered or the judge suggests it, it often has much more credibility to the parties and they work better together to end their dispute.
Westgarth suggested the benefits as well as the obstacles and disadvantages of genuine-step statements have been overstated and that they are “fairly benign simple steps to be easily taken”.
Gormly agreed to some extent and said that the Act was “nowhere near as bad as it’s been complained of sometimes”.
“It’s effect may be not as great as people like me would hope it to be, but it’s one step along the way and if it has the effect of causing people [who often feel it’s a sign of weakness to make the first move to discuss settlement] to have to take steps toward one another to start talking then that’s got to be a good thing.”