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Questions over mediation rigidity

A RECENT legal judgement has raised concerns over the mediation approach used within the Supreme Court system.

In his judgement of a case between Royel Fitness Equipment and Sheppard West over a cost order after a failed mediation, Master Craig Sanderson indicated his concerns over the rigid way mediation was administered by the court.

“Given the number of cases which go to mediation and the lack of any guide provided by the rules, it is remarkable that few problems arise,” he said.

“No doubt this is a tribute to the earnest attention paid to the mediation process by solicitors and their clients and to the skill of the mediation registrars. Unhappily, occasionally problems do arise and this is one of those cases.”

Leading Edge Alternative Dispute Resolution WA chapter chairman Basil Georgiou said he shared Master Sanderson’s concerns.

He said the court-annexed mediation system was generally less flexible than private mediation, which had both good points and bad.

The good came from the court’s power to order people to undertake mediation. This meant many more matters were settled through court mediation than through private mediation.

Indeed, in his 2001 Annual Review of WA Courts, chief justice David Malcolm says over the past six years an average of 351 mediation conferences have been held each year.

In 2000-01, Supreme Court registrars conducted 365 mediation conferences.

“The success rates at mediation continues to be above 70 per cent,” he said.

In the review Mr Malcolm calls for a further two registrars.

However, the court lists do inflict some restrictions on the use of mediation and do not allow the flexibility available through private mediations.

Mr Georgiou said one of his concerns was the lack of research into the outcomes from court mediation.

“They [the Supreme Court] may have had a lot of results but there is nothing to say people are satisfied with those results,” he said.

“If you have a high incidence of cases where both parties are either happy or unhappy with the outcome it could be said that the mediation process is working.

“If there are a lot of cases where one of the parties is happy and the other is unhappy then you have an imbalance and the system needs to be reassessed.

“There needs to be some sort of interviewing after the mediation process to see how it has gone.”

Other legal practitioners share this concern.

Allens Arthur Robinson litigation partner Tom Yuncken said such studies could prove useful.

“There are situations where a mediation has broken down and the case has gone to trial and one of the parties attacks the mediation process, but that is only in a terribly small percentage of cases,” he said.

Mr Yuncken said there was a risk that mediation could become just another court process on the way to trial.

“I think it is important that parties bring a positive attitude to mediation and that they come to the proceedings with an open mind,” he said.

There will always exist cases where mediation will not be appropriate. For example, it cannot be used in criminal matters or where points of law are being questioned.

Despite that, legal practitioners agree that mediation has been one of the greatest additions to the court system.

It is believed mediation came into prominence within the court system because between 70 per cent and 75 per cent of cases were being settled before they actually got to the hearing stage.

Bar Association vice-president Gillian Braddock SC said the Supreme Court mediation process had proved invaluable. Indeed, she was involved with the mid 1990s pilot program that led to the creation of the court’s mediation system.

Ms Braddock said mediations could be gruelling but the outcome was usually worth it.

“I’ve been in mediations that have been set down for 9.30 in the morning and we’ve still been there at 6pm, but the matter has been sorted out,” she said.

“If everyone who had a grievance went through the system and went before a judge, the court would not be able to bear the traffic.”

Law Society of WA president Clare Thompson said mediation had been one of the most significant developments in courts over the past 10 years.

“The Family Court is probably the biggest user of mediation and they usually have good outcomes,” she said.

“Even if a case ultimately goes to trial, mediation usually helps clarify the issues, which helps shorten the length of the trial. It also improves the chances of out-of-court settlements.

“Going to court is very costly – both financially and in the time spent there.”

Indeed, in the case of Royel Fitness v Sheppard West, one of the things the defendant was seeking was for the plaintiffs’ solicitors to pay the $27,757.54 cost of preparing for and attending a mediation conference.

However, this cost is considered small when compared with the cost of a trial..

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