AN INQUIRY into Alternative Dispute Resolution (ADR) could result in mandatory mediation for an extended amount of cases, as the Federal Government moves to curb the rising costs of litigation.
Attorney-General Robert McClelland used last week’s National Mediation Conference to announce that the Government had charged the National Alternate Dispute Resolution Advisory Council (NADRAC) with the task of determining what incentives could be offered to encourage greater use of ADR, as well as what barriers needed to be removed. “And specifically,” said Justice McClelland. “NADRAC will consult widely and consider whether ADR processes should in some cases be made mandatory.”
NADRAC has already proposed to release a discussion paper in relation to the issues and seek feedback on how ADR could be further developed in Australia.
Justice Murray Kellam, chair of NADRAC, said that the inquiry, known as the Civil Procedures Reference will see NADRAC identify strategies for litigants, legal professionals, tribunals and courts, to remove barriers and provide incentives to ensure greater use of appropriate ADR processes.
“Basically he has asked NADRAC to provided advice on what initiatives might be taken to support those strategies, including whether legislative change is required,” said Justice Kellam. “It will be an examination on whether current court rules and legislation is effective for courts and tribunals — if they sufficiently encourage ADR and what is there about the current litigation processes that discourages it.”
Although most courts in Australia do have the power to refer matters to mediation, the outcome of NADRAC’s inquiry may see such mandatory circumstances extended further. From there, Justice Kellam said, NADRAC will also investigate where incentives and changed cost structures could be introduced to encourage greater use of ADR.
“He [the Attorney-General] has also included in that the potential for greater use of ADR by courts and tribunals — including by judicial offices where they will probably look at the emerging issue as to whether or not judges or other judicial offices ought to be involved in mediations directly,” said Kellam.
“That hasn’t been looked at yet in any detail in Australia yet.”
With a deadline of 30 September 2009, NADRAC will also be investigating the potential for a greater use of private and community-based services, and how such services can meet appropriate standards.
ADR, and more specifically mediation, is fast garnering attention in Australia as mediators work to establish a national accreditation system, the ethics surrounding the position, and the role of associated professions such as lawyers and psychologists.
Last week’s Perth-based mediation conference saw 450 mediators in attendance, the largest gathering of mediators in Australia.
Margaret Halsmith, principal mediator at Halsmith Consulting and conference organiser, said the support for the voluntary scheme on accreditation for mediators, which began on 1 January this year, was overwhelming.
“It was reviewed at the conference and although it’s a voluntary scheme, there has been huge buy-in,” she said. “It has been amazing.
“It’s buy-in from all sectors and segments, aspects and fields of the nascent profession. There is debate as to whether we are yet a profession — I call it a nascent profession.”
Halsmith was last week appointed to NADRAC by Attorney-General McClelland, who also announced the reappointment of Federal magistrate Norah Hartnett.
As well as running her own firm, Halsmith is the chair of LEADR — an association of dispute resolution professionals — a representative on the National Mediator Accreditation Committee and a member of the Western Australian Dispute Resolution Association.