By Lawyers For Lawyers
The conduct of a Supreme Court proceeding followed sequentially from settling it early to going to court.
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The court has power to order that civil proceedings be referred to mediation at any time, with or without the consent of the parties- r 50.07. It is either a compulsory step or ‘strongly encouraged’ in the specialist lists.
Mediation is normally before a private mediator paid for by the parties but also may be before an associate justice: r 50.07 if an associate justice so orders or a judge refers it to an Associate Justice. This is becoming more common when a private mediation arranged by the parties has failed, and someone with a bit more positive influence is desired.
Master so orders or a judge refers it to the master: r 50.07.1(1)
All mediations are conducted upon a without prejudice basis and all of the proceedings are expressly excluded from evidence.
The tendency is to order mediation (if it is not already agreed between the parties) earlier rather than later. If mediation can be conducted before discovery and other interlocutory steps, the costs savings can be enormous.
At mediation any agreement is reduced to orders or an agreement or both. Orders are then made by the court, including orders disposing of the proceedings.
In the Supreme Court most matters will be ordered to mediation before they are set down for trial. Indeed, the court will not set matters down without a mediator’s certificate of conclusion of the mediation, as a rule.
Any party can seek an order for mediation even though it is opposed by another party. If the order is opposed by the other side, in your submissions tell the court what the issues are, whether of fact or law, whether they are clearly defined in the pleadings, what the state of the evidence is, whether it is a family dispute, whether there is likely to be extensive discovery of documents, whether expert evidence will be called, the likely length of hearing and why it is appropriate to make the order.
Once a mediation order is made the parties will have to agree on the mediator to be employed. This may be any qualified person, but the cost will vary greatly between, say, a retired Supreme Court judge at the top of the scale and a commercial mediator at the other.
In the Supreme Court, where issues are more substantial, pleadings more complex and parties more numerous, the presence and authority of the mediator can make a significant difference to the success of the mediation. Retired judges tend to have a more insightful approach than a commercial mediator might, and can also withstand the more aggressive litigants better.
The mediator will speak to the practitioners to arrange the mediation date and venue, what documents are to be read by the mediator, position papers, parties’ authority to settle and any other matters relevant to the mediation. Usually the mediator will require the parties to sign a mediation agreement, which sets out the rights of the parties (and the mediator) and protects the confidentiality of the process.
The division of cases into specialist lists in the Supreme Court has led to automatic making of procedural orders, whether by consent - incorporating the parties requests - or at the motion of the judge in charge of the particular list. Mediation is one of the essential elements of the orders. The parties generally must organise the venue and mediator. As a rule, the mediator is supplied only with the pleadings, and sometimes with (usually useless) position papers prepared by the parties’ legal representatives.
The mediator is not an adjudicator and parties cannot expect him or her to make a judgment on the likely outcome of the dispute nor to express such a view to a potential loser. A mediator will often point out the difficulties of a particular case but mediators are facilitators, not judges. A mediator will not decide who wins. Therefore it is not productive or cost-effective to require the mediator to read the entirety of the documentation in the case. Usually the pleadings and concise position papers are sufficient. Sometimes a mere oral summary is enough.
Ensure that the client has authority to settle, particularly where there are corporations or partners involved. If there is no authority to settle, the mediation will fail and there may be an application to the Court for costs thrown away.
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