Court
Annexed mediation and court
referred mediation.
HENRY JOLSON
ABSTRACT
Country:
Australia
Language:
English
ADR, and in particular mediation, is becoming institutionalized. It has the potential to become over-regulated. It is territorially based. Federal and State governments have enacted legislation and promulgated Rules of Court for their courts and tribunals, and professional organizations have adopted Codes of Conduct and Protocols for mediation. However, there are differences in definition and approach, different requirements for recognition or "accreditation "for mediators, and different methods for selecting mediators. Further, there is an absence of any meaningful evaluation of the quality of the mediation process or of its outcome. The motive of legislators and courts in resorting to mediation is singular. It is to reduce the backlog of cases awaiting trial. There is no concern about the quality of the process. There is a distinct move by legislators and courts to make ADR the primary dispute resolution technique and judicial determination the alternative.
I would propose to reflect on those observations having regard to events since 1997 and in particular the role of the Courts and Judges in ADR. I will suggest distinguishing between Court Annexed Mediation and Court Referred Mediation: the former term to apply to Courts that administer the process and provide the Mediators, and the latter to apply to Courts that reefer disputes to outside independent Mediators.
Model Legislation and Rules for Court Annexed (referred) Mediation as drafted by the Law Council of Australia have been approved by the Australian and New Zealand Council of Chief Justices and by the Federal Attorney General. I was the principal draftsman of the Model. Further the Law Council has drafted Ethical Standards for Mediators and is seeking similar approval. I am on the drafting committee responsible for the Ethical Standards.
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