07 Jul 2017

Broadening The Traditional Use Of Mediation To Resolve Interlocutory Issues Arising In Matters Before The Courts

Adele Carr

It is common in commercial dispute resolution processes for mediation to be a step undertaken before the commencement of litigation. Mediation, however, should not be limited to resolving the entire dispute. The core objectives and approaches to mediation can be used more broadly to effectively resolve interlocutory issues in commercial disputes as a complementary mechanism to the overall dispute resolution process. Using mediation to address interlocutory issues may assist with the overall conduct of the dispute resolution process by narrowing the issues at final hearing and ultimately reducing time and costs spent in court. It also has the potential to preserve the parties’ relationship that existed prior to the dispute commencing.

A what is mediation

There are varying views and opinions as to what ‘mediation’ means and the process it involves. However, for the present purposes, the term ‘mediation’ will be used in the context of a structured negotiation process where a neutral and independent third party facilitates discussions and negotiations between the parties in dispute to reach a self-determined agreement.[1]

The purpose of mediation, in the traditional sense, is to resolve entire disputes to the satisfaction of the parties by recognising each of the parties’ needs, through a process that the parties assume at the outset will be fair.[2] To achieve these objectives, mediation is based on the premise that it will be consensual and promote self-determination and empowerment of the parties by creating a forum in which the parties feel they have the opportunity for open and frank discussions in order to identify the real issues in dispute and achieve a mutually acceptable outcome. [3]

B What approaches may be taken to mediation

Boulle identifies four models of mediation, namely settlement, facilitative, transformative and evaluative mediation.[4]

Settlement mediation encourages the parties to engage in incremental bargaining to reach a compromise.[5] Facilitative mediation encourages a constructive dialogue between the parties to reach an interest-based agreement. [6] Transformative mediation refers matters back to the parties to assist them in resolving their own dispute. [7] Evaluative mediation involves professional expertise to advise and persuade parties to reach a settlement according to their legal rights and entitlements. [8] Where the dispute concerns legal issues, advisory and facilitative mediation are the most commonly used models. [9]

Whilst the models referred to above are varied in approach, the common and essential element in each mediation model is self-determination by the parties of the issues, which are the subject of the mediation.[10] Self-determination is also one of the distinguishing features between mediation and traditional litigation. Under the common law system, although the parties define the issues in dispute and present evidence and arguments in support of their application to the court, the court determines disputes by reference to legal rules and principles applicable to a party’s rights. [11] On the other hand, mediation, particularly, in the scope of facilitative mediation, is an informal process whereby the parties can reach a consensual interest-based agreement, which need not have any reference to legal rights. [12]

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[1] See Civil Procedure Act 2005 (NSW) s 25; See also Boulle L, Mediation principles, process, practice (3rd, LexisNexis Butterworths, Victoria, 2011) pp 12-13.

[2] See Wolski B, “On mediation, legal representatives and advocates” (2015) 38 Univ of NSWLJ 5, 28-29; See also Justice P A Bergin, ‘The objectives, scope and focus of mediation legislation in Australia’ (Paper presented at ‘Mediate First’ Conference, Hong Kong International Arbitration Centre and the Hong Kong Mediation Council, Hong Kong Convention and Exhibition Centre, 11 May 2012, [6]-[7]; Boulle, above n 1, 91.

[3] See Boulle, n 1 at 89; See also Wolski n 2 at 28-29.

[4] See Boulle, n 1 at 43.

[5] See Boulle, n 1 at 44-45.

[6] See Boulle, n 1 at 44-45.

[7] See Boulle, n 1 at 44-45; See also Redfern M, “The Mediation Challenge” (1998) 9 ADRJ 206, 207.

[8] See Boulle, n 1 at 44-45.

[9] See Cooper D, “Representing clients from courtroom to mediation settings: Switching hats between adversarial advocacy and dispute resolution advocacy” (2014) 25 ADRJ 150, 155.

[10] See Boulle, n 1 at 43; See also Wolski, n 2 at 29-30; NMAS, n 4 at s 2.2.

[11] See Boulle, n 1 at 140.

[12] See Boulle, n 1 at 141; See also Woodward J, “Court connected dispute resolution – whose interests are being served?” (2014) 25 ADRJ 159, 159

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