Circulars

No. 5 of 2009

Mediation and Conciliation

The Magistrates Court is introducing changes to its alternative dispute resolution services.

The changes will only apply to proceedings involving civil claims filed in the Magistrates Court (Civil Division). At this stage, the changes will not apply to proceedings involving minor civil claims, restraint orders, child protection; and other jurisdictions administered in the Magistrates Court such as the Anti-Discrimination Tribunal, and the Administrative Appeals Division unless ordered by the Magistrate or presiding officer.

The changes will introduce a "user pays" system under which the Court will exercise its powers pursuant to the Alternative Dispute Resolution Act 2001 s.7 which provides:

5. Referral by court

      (1) A court may, by order, refer a matter arising in proceedings before it (other than criminal proceedings) for mediation or neutral evaluation if the court considers the circumstances appropriate and whether or not the parties to the proceedings consent to the referral.

............

7. Costs of mediation and neutral evaluation

(1) The remuneration of a mediator or evaluator is to be borne by the parties to the proceedings in such proportions as they may agree among themselves or, failing agreement, in equal shares or as otherwise directed by the court.

(2) (2) Unless otherwise agreed by the parties or as directed by the court, the costs of a party of and incidental to the mediation or neutral evaluation are to be that party's costs in the cause.

Magistrates’ referrals to conciliation will also be made concurrently pursuant to the Magistrates Court (Civil Division) Rules 1998 in order to invoke the conciliators’ powers set out in those Rules.

The Magistrates Court will facilitate parties’ access to appropriately qualified and experienced Court-appointed mediators and conciliators, some of whom will be consultant mediators, some of whom will be mediators on the Court’s staff.

The cost of Court-appointed mediations will be $300 plus GST in total per mediation, payable in equal proportions by the parties, or in such proportions as the parties agree or the Court directs. No additional charge is payable if a mediation is adjourned part-heard by the mediator to a subsequent date.

The mediation charge will be payable, in the first instance, by the Claimant in the proceedings upon the appointment of a mediation date by the District Registrar. The mediation charges are costs in the cause and may be recovered by the Claimant from the other party or parties proportionally depending on the outcome of the conciliation or ultimate trial.

In the event that the mediation charge has not been paid at least 7 days prior to the appointed mediation, the Court will have no other option but to cancel the mediation.

Any cancellation of a mediation booking by the parties less than 7 days prior to the scheduled mediation date will attract a cancellation charge, being a forfeit of the mediation fee paid. The cancellation charge will not be imposed if cancellation results from a reason unforeseeable at the time of booking.

Parties in any pending proceedings who are currently awaiting allocation of a conciliation date (where no order of referral under the Alternative Dispute Resolution Act 2001 has yet been made) may elect to be included in the above arrangements. The parties or their solicitors should contact the relevant District Registrar to make the necessary arrangements.

The above arrangements commence immediately.

Jim Connolly
ADMINISTRATOR OF COURTS
7 October 2009