ADR - Lecture notes 10 PDF

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Civil Dispute Resolution, 201 Definitions of ADR, and various processes ADR and the courts Mediation and case-appraisal Video – case study mediation. Week 10 tutorial – consider the benefits of ADR and suitability.

ARBITRATION KEY FEATURES Conducted in private Commonly used for international disputes Helpful for technical areas (used commonly in construction law, commercial etc) Parties can agree on arbitrator beforehand by agreement. ADR OPTIONS

Definitions: ADR Criticism of traditional court adjudication → focus on less-adversarial processes. ‘Alternative Dispute Resolution’. 1990s, ADR/PDR processes were incorporated into court/tribunal systems (part of the reform movement). “Additional”, “appropriate” and “amicable” began appearing. How alternative are alternatives? Litigation is commenced in about 5% of contentious cases. Of the cases in which litigation is commenced, some 90-95 % are settled before a full trial. Trial: 5% of disputes. Majority of disputes - settled in negotiation, mediation or some other dispute resolution process. ADR OPTIONS ADJUDICATION “is a process in which the parties present arguments and evidence to a dispute resolution practitioner who makes a determination which is enforceable.” ARBITRATION IS AN EXAMPLE OF AN ADJUDICATION.

NEGOTIATION，MEDIATION，CASE APPRAISAL Some working definitions Negotiation: a process whereby the parties confer with each other for the purpose of reaching an agreement that satisfies their respective interests. It takes two main forms: 1.Unassisted – parties do it by themselves, without assistance from a third party. 2.Assisted - an independent third party assists the parties to negotiate a resolution. Most common form →mediation. Definitions - DR processes Adjudication: a process in which an independent third person is authorised to impose a decision upon the parties to a dispute. The decision is made upon the basis of evidence that the parties have presented in support of their respective cases. Adjudication may take place in a private forum before an arbitrator appointed by the parties (arbitration) or in a court or tribunal before a judge or tribunal appointed by the state (litigation).

Mediation outside courts Mediation - an important service offered to clients in private legal practice. There are a variety of community-based mediation schemes eg Relationships Australia. In State Legal Aid commissions, participation in a mediation conference is often a pre-requisite to a grant of legal assistance. Institutionalised ADR There is a trend towards requiring the parties to consider ADR before they commence proceedings. [ASCR] All courts encourage the parties to use ADR after proceedings have been commenced. All courts conduct a variety of compulsory pre-trial conferences using mediation principles. Compulsory referral to ADR Once proceedings have commenced, the majority of courts in Australia have the power to refer parties to mediation (or other ADR process) often without parties’ consent. See eg: Federal Court of Australia Act 1976 (Cth) s 53A. Civil Proceedings Act 2011 (Qld) and UCPR: provision is made for mandatory referral of disputes to mediation and case appraisal. Attitude of Australian Courts

A clear judicial preference in favour of mediation orders even if one or more parties objects to the order. Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2004] FCA 516 the trial judge ordered the parties to attend mediation before the defence had been filed, despite the parties’ desire to wait. See also Simic v LTH Investments Pty Ltd (Qld) 2013 QDC 240 The more common approach: to adjourn applications for mediation orders until further information (such as expert reports and financial information) has been exchanged by the parties. ADR in Qld Courts CPA ss 39-53 UCPR rr 313-322 Trial dates may not be set until ADR process followed ADR options in Qld – mediation and case appraisal – part of case management process CPA s 37 – objects – opportunity to participate in ADR, achieve negotiated settlements, improve access to justice, reduce cost & delay, with little formality & technicality ADR IN QLD COURTS CPA s 39 – In Queensland ADR is mediation or case appraisal. CPA s 40 – defines mediation - a process under the rules in which the parties use a mediator to help them resolve their dispute by negotiated agreement without adjudication.

CPA s 41 – defines case appraisal - a process under the rules in which a case appraiser provisionally decides a dispute. Getting to ADR CPA s42 – parties can refer a dispute to ADR by filing a consent order. Court then makes a referral order. Getting to ADR CPA s43 – court may order ADR UCPR r 319: The court may order the parties (by notice from the registrar) to an ADR process (mediation or case appraisal) to be conducted by a specified mediator or case appraiser (the parties may select and agree upon the third party). A party may object to the reference, within 7 days of receiving the notice, by an objection notice (stating the reasons for the objection). The court may require the parties to attend a hearing, at the conclusion of which, the court may make an order it considers appropriate. UCPR r 320 referral: the court may order a dispute to mediation or case appraisal on the application of a party or if the proceeding is otherwise before the court (eg where the case has already been set down for hearing or part-heard). If referral to ADR, r 321: proceedings are stayed (until report from ADR convenor is received by the court). CPA s44, UCPR r 322 – parties must attend, must not impede ADR convenor or sanctions.

Participation in ADR UCPR r 322: a party impedes an ADR process if the party fails to attend at the process; or participate in the process; or pay an amount the party is required to pay under a referring order (the order states the ADR costs). (Under this scheme, ADR convenors are allowed to set the amount of their fees). There is little guidance on what is required by way of participation. R 325 & Form 33 (Referral order) requires parties to “attend, participate and act reasonably and genuinely” Mediator’s role, Qld Courts Rule 326 provides that the mediator may: gather information about the nature and facts of the dispute in any way the mediator decides. decide whether a party may be represented at the mediation and, if so, by whom. see the parties, with or without their representatives, together or separately. Rule 328 provides that the mediator may: seek legal or other advice about the dispute from independent third parties providing the mediator has the leave of the court or the parties agreement to pay extra costs if extra costs are involved. Mediation, Qld Courts The mediator must file a certificate after mediation

it must not contain comment about the extent to which a party participated or refused to participate in mediation

May adopt any procedure what will, in the CA’s opinion, enable a sound opinion of the likely outcome of the dispute

but may state that a party did not attend the mediation.

May in special circumstances receive evidence, examine witnesses (only the court can issue subpoenas).

R 332: if a mediation is unsuccessful, the dispute may go to trial or be heard in the ordinary way without an inference being drawn against any party of the failure to settle at the mediation.

May at any time give directions about procedure to be used.

Case appraisal under UCPR CPA s 48: If agreement reached (whole or part), the agreement must be written down and signed by or for each party and by the mediator.

UCPR r 335: the case appraiser “has the power of the court referring the dispute to decide the issues in dispute in the referred dispute”.

The agreement has effect as a compromise.

UCPR r 343: A party who is dissatisfied with the case appraiser’s decision may elect to have the dispute go to trial by filing an election in the approved form. r 341: If such an election is not made, “the parties are taken to have consented to the case appraiser’s decision being binding on them and the decision then becomes final and binding”. It can be enforced, s 51. r 344. A party who challenges the decision of a case appraiser may be subject to an adverse costs order if the court’s decision at trial is “not more favourable overall” to a challenger than the case appraiser’s decision was to the challenger. Costs generally

r 336: there is a right to legal representation. CPA s 50: A party may apply to the Supreme Court for an order giving effect to an agreement reached in mediation. Case appraisal, Qld Courts UCPR r 319-320: the parties may consent to a referral or the court may order the parties to attend case appraisal on the application of a party or on its own motion. A party may object to the reference→hearing. Court may make the order with or without the parties consent. CPA s 45 – procedure at case appraisal. CA must decide the procedure. The CA:

r 337: a case appraiser may ask anyone for information (although leave of the court or the parties’ agreement is required if there are costs involved). Powers of case appraiser UCPR r 339: a case appraiser’s decision must be in writing but reasons need not be given. An appraiser may decline to proceed if the dispute “proves to be unsuitable”.

Court has power to make another order as to costs. If all parties challenge the decision, appraiser’s decision has no effect on costs. If ADR is unsuccessful (not resulting in a full settlement), each party’s costs of the ADR process are the party’s costs in the dispute ie, unless otherwise ordered, costs will follow the event: rule 351. Confidentiality

r 340: appraiser has the same power to award costs as the court that referred the dispute.

CPA s 54 (1) An ADR convenor must not, without reasonable excuse, disclose information coming to the ADR convenor's knowledge during an ADR process.

Effect of case appraiser’s decision

Limits of confid. for convenors

CPR s 54(2) disclosure justified (reasonable excuse) when: is made with the parties’ agreement; for an inquiry or proceeding relating to an offence occurring in the course of the ADR process for a proceeding based on a fraud alleged to relate to or have occurred in the ADR process, or to fulfil a statutory requirement Confidentiality – limits of parties Williamson v Schmidt [1998] 2 Qd R 317: A participant cannot lead evidence of anything said or done at mediation in later proceedings. But a participant is entitled to prove by admissible evidence the existence of any factor or matter disclosed at mediation. Can’t whitewash or sterilise material just by raising it at mediation. 威廉姆森 v 施密特 [1998] 2 Qd R 317： 参与人不能在以后的诉讼中提供在调解中 说过或做过的任何内容的证据。 但参与人有权以可受理的证据证明在调解 中披露的任何因素或事项的存在。 不能仅仅通过在调解时提高材料来粉饰或 消毒材料。 See also Farm Assist Limited (in liquidation) v The Secretary of State for Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 – The mediator to a former case was called by the parties as a witness. One of the parties alleged that they were under duress at the

time of the mediation and wanted the mediator’s recollection of the mediation. The mediator refused relying on the confidentiality clause in the mediation agreement that they could not call her as a witness. The Court held there is a higher duty of confidentiality more than privilege, however, the court held that she must give evidence, mainly because the parties had consented (waived privilege) and that she was giving evidence on the conduct during the mediation, not the subject matter of what was agreed in that case. 另见农场援助有限公司（清算中）诉环境、 食品和农村事务国务秘书（第 2 号[2009] EWHC 1102 | 当事方传唤了前案件的调解员作为证人。 其中一名当事方声称，他们在调解 受到胁迫，希望调解员回忆调解情况。 调解员拒绝依赖调解协议中不能传唤她作 为证人的保密条款。 法院认为，保密义 务高于特权，但法院认为，她必须提供证 据，主要是因为双方当事人已同意（放弃 特权），而且她在调解期间就该行为提供 证据，而不是在这种情况下所商定的主题 事项。...