Hi John - thanks for your important article
I am a close friend of a Fed Circuit Court Judge [name suppressed] who was passionate about exactly your point. Finding ways to relieve the pressure on the courts, refining those matters that are "trial-worthy" vs those that should be resolved upstream with simpler, faster solution paths was key in our discussion on this topic. Efficient upstream processes can have the effect of a) resolving matters, b) improving mutual understanding on options, c) setting the scene for out of court settlements, to an extent relieving the pressure on the registrar for the court and the relevant judges downstream of these processes.
He echoed my interpretation that the dispute initiators and their legal reps (solicitors/barristers) determine what they believe is trial-worthy and the only gating process on whether a matter is referred to trial from that point is the registrar for the court.
An effective, upstream triage process that can prioritise mediation or some form of conciliation prior to finalising dates for court is vital so that trivial matters dont find their way to clog the courts, but this form of triage is not consistently applied. COVID has done nothing but compound an already very stressed system.
He said there was a process in Victoria referred to as the blitz process whereby a judge would call over 25 matters to be heard in a day, on the condition that the parties had a red-hot go with a mediator prior to trial. However he stressed the end point of mediation was that the parties had the choice to press onward to arbitration or court if they chose to
Something similar was done in Qld recently where a number of mediators banded together for free to clear backlog to the trial process, however that was in relation to a log-jam and is not a regular practise. Obviously something as aggressive as 25 matters listed for call-over requires a team of people and intense effort on the fly. Such intense effort requires a coordinated approach.
The "blitz" model promoted in Victoria has potential to be a tremendous tool to free up the courts which will challenge sparring parties to follow a structured process and hold a genuine discussion prior to trial, related to resolution of the matters. The challenge for mediators, conciliators and legal professionals upstream of the courts is to be the point of difference to processes which are struggling under the relentless pressure currently biased to referral to the courts.
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Ed Skinner
Director
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Teneriffe QLD
411660446
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Original Message:
Sent: 25-11-2020 07:39 AM
From: John Woodward
Subject: Legislating for Common Sense: Encouraging the Legal Profession to use mediation as a first step
In 2009 the NSW Parliament legislated an amendment to the Civil Procedure Act 2005 (NSW) which would have had the effect of requiring intending litigants to make reasonable efforts to resolve their disputes before commencing litigation in a NSW Court. Despite widespread community consultation and bipartisan support from the major political parties, the newly enacted Part 2A did not take effect and was ultimately repealed. In an article I have written and will appear in the next edition of the Journal of Civil Law and Practice (JCivLP vol. 9 pt. 3) I have traced the passage of Part 2A through the parliament and considered some of the commentary that has been written about it over the last decade. My argument is that the reasons advanced against introducing the Part 2A amendment are now far from convincing, if indeed they ever were, and that it is now time to reintroduce a "reasonable efforts" requirement into the Civil Procedure Act 2005 (NSW). It is more than forty years since American researchers Carnevale and Isen identified 'positive affect' as a contributing factor to disputants' disposition towards mediation and it is clear both that lawyers influence their clients' attitudes to mediation (and indeed whether to agree to mediation at all) and that there remains a significant undercurrent of resistance to mediation in NSW. Legislation cannot by itself bring about a change in attitudes. In the words of the aphorism "You can't legislate for common sense." However, the introduction of the abandoned Part 2A amendment will do much to focus attention on the fact that there are more constructive ways to resolve most disputes than resorting to litigation. I commend the article to your attention.
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Dr John Woodward
Associate Lecturer
University of Newcastle NSW
0403 054 411
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