4.15 in Wilarra
Over the last number of decades, courts in both Australian State and Federal civil jurisdictions have relied on alternative dispute resolution processes to deal with the increasing volume of cases, against the back-drop of decreasing court and justice agency budgets and the increasing complexity of cases.
One of those dispute resolution processes used by courts is court-referred mediation. This requires parties to attend a mediation prior to the matter being heard by a judicial officer. However, what does court referred mediation mean for the process, outcome and type of justice that litigants will receive? What does it mean for the justice system as a whole? And more importantly, is court-referred mediation in fact a genuine mediation?
Parties have an expectation that when they commence proceedings in court they will achieve some sort of justice through that legal process, i.e. a judge will make a decision based on the law. When a matter is referred to mediation, however, this may not necessarily be realised, as mediation is about principles such as self-determination; autonomy and the empowerment of the parties, along with parties undertaking the process voluntarily and in good faith.
Court referred mediation is different from other types of mediations because it takes place under the auspices of the legal system. Also, generally, mediators who do this work have knowledge and/or experience in that area of law, and they will offer a prediction on a probable court outcome, should the case go to hearing.
In that sense, court-referred mediation is just another step in the court process – something that parties are required to do prior to going to hearing. This process allows the disputing parties to listen to the mediator who has expertise and knowledge, and then make an informed decision on whether to proceed to hearing, and therefore, potentially saving them and the courts time, money and effort, as well as helping to remove uncertainly in the legal process. By this definition then, court-referred mediation is in fact closer to an assessment of the case, rather than mediation as such.
Court referred mediation is challenging the definition of mediation, which has consequences for the legal system, mediation and key-stakeholders.