Judicial Mediation – A New Development

By Best Wilson Buckley Family Law |06 May 2019 |Mediation and Family Dispute Resolution-Articles

Judicial Mediation – A New Development

A number of new developments in the Family Court system were introduced as of 1 January 2019 and in this article, we take the opportunity to consider Practice Direction 1 of 2019 issued by the Federal Circuit Court regarding judicial mediation.

What is judicial mediation?

Mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. In the case of judicial mediation, the mediator is a judge and their role is to assist parties in negotiating an agreement. This is a significant departure from a judge’s usual role, which is typically to impose a decision on the parties.

Why was it introduced?

The purpose of introducing judicial mediations is to enable the Court to resolve disputes in the most efficient manner possible. At the time the Practice Direction was issued, it was made clear that judicial mediation is not intended to be a substitute for private mediation, and it is expected that practitioners and parties will exhaust mediation alternatives prior to judicial mediation.

Criteria for judicial mediation

The Practice Direction sets out the matters that are to be taken into account when the Court is requested to consider a judicial mediation. The relevant factors to be taken into account are:

  1. - whether both parties are legally represented;
  2. - if one or both parties are self-represented, whether the judge considers the matter to be suitable for judicial mediation;
  3. - where the dispute relates to property;
  4. - if it is a parenting dispute, and there is no allegation of serious risk and/or family violence;
  5. - “appropriate” child support matters;
  6. - whether there has been compliance with orders for a prior private mediation which has been unsuccessful;
  7. - whether the Court considers there is a risk that the costs and time of a trial is disproportionate to the subject matter of the dispute;
  8. - any other matters identified as suitable by the judge.

When will judicial mediation occur?

In the event a party to Federal Circuit Court proceedings wishes to have a judicial mediation, they may make an oral application in Court or, alternatively, make a request in writing to the judge’s chambers – after appropriate notice has been provided to all other parties in the proceedings.

At the time of making an application, the Court requests that a bullet point format summary is provided addressing the criteria as outlined above.

If you are a party to Federal Circuit Court proceedings, and the opposing party requested a judicial mediation be considered by the Court, you will have 14 days to consent to the proposed judicial mediation or, alternatively, if you oppose judicial mediation you are to provide a brief summary in bullet point format as to why the matter is not suitable. This opposition should again address the criteria for suitability as outlined above.

If the application for judicial mediation is opposed, there will be an oral hearing of the application.

Who conducts the judicial mediation?

The mediator will be a judge of the Federal Circuit Court, however will not be the judge whom the matter has been listed before previously in the proceedings. That is, a judge who conducts a judicial mediation cannot have previously heard the matter and they cannot determine the matter at a final trial in the event the matter does not resolve at the judicial mediation.

Preparation for judicial mediation

In the event a judge makes orders directing parties attend at judicial mediation, ancillary directions will also be made in relation to preparation and attendance. In property disputes, the Court requires a significant amount of preparation to be conducted prior to the
judicial mediation, including the following matters:

  • - a list of all relevant applications and Court documents filed in the proceedings be provided to the judicial mediator;
  • - a balance sheet of agreed and disputed assets and liabilities be prepared;
  • - a case summary document be prepared addressing the relevant factors under the Family Law Act, being section 79 and section 75(2) in respect of matrimonial property settlement and section 90SM and 90SF(2) in respect of de facto property settlement matters;
  • - a Court book be prepared indexing all relevant discovered or subpoenaed documents (which is to be paginated);
  • - any valuations obtained are copied and provided to the judicial mediator;
  • - confirmation be provided that a superannuation trustee has been afforded procedural fairness in the event a superannuation splitting order is sought;
  • - a draft minute of proposed order be prepared.

In respect of parenting disputes, the following preparation is expected:

  • - a list of all relevant Court documents filed in the proceedings;
  • - a case summary addressing the relevant factors under section 60CC;
  • - copies of any family reports, psychiatric and risk assessments are made available to the Court;
  • - a Court book of all relevant discovered or subpoenaed documents is indexed and paginated;
  • - a draft minute of proposed order is prepared;
  • - a copy of any intervention (domestic violence and family violence) orders that are in place are available.

What happens on the day of judicial mediation?

On the day of the judicial mediation, the general rule is that parties and their legal representatives must personally attend. Participation by video link or telephone will only be permitted in exceptional circumstances.

The judge appointed to conduct the judicial mediation will have discretion in relation to the style and practice of the mediation and the only rule that will otherwise apply is that the mediator cannot, without the express approval of all parties to the mediation:

a. meet individually with a party and relevant legal representatives;
b. disclose information provided to a party in a separate session to the other party.

As is the case with private mediations, the judicial mediation will be confidential and any documentation provided to the mediator will be returned to the parties or destroyed.

Time will tell …

This is a new development for practitioners and parties in the Brisbane registry in particular, although our colleagues in other registries throughout Australia have sitting judges who have been conducting judicial mediations. The prospect of judicial mediation is welcomed and embraced as an option available to parties in Federal Circuit Court proceedings as yet another means of alternative dispute resolution; and a means of exhausting all settlement opportunities before seeking that a judge determine parties’ disputes.

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