Royle, Richard --- "ADR in historical sexual abuse cases: Mediating for Survivors of Abuse" [2017] PrecedentAULA 49; (2017) 141 Precedent 42

---

WHY COURT-ORDERED MEDIATION IS GOOD FOR YOU – AND YOUR CLIENTS!

By Judge Andrea Tsalamandris

Writing an article on the pros and cons of court-ordered mediation is in many ways similar to writing an article on the pros and cons of sunscreen. The benefits are now so widely recognised, that both are considered a given. Mediation is good for the litigation process, just as sunscreen is good for your health.

Yet we have only recently become aware of these benefits. As a teenager, I recall looking like a beetroot after a day in the sun, while as a solicitor at the commencement of my career, I recall many cases settling on the doorstep of the court. Experience has now taught us that the benefits of both sunscreen and mediation are so great, that we readily overlook what can, at times, be an occasional inconvenience.

Historically, however, courts have not interfered with pre-trial management, unless called upon by the parties to adjudicate an interlocutory application. This hands-off approach resulted in many cases drifting along slowly, some taking years to progress from the date of issue to the date of resolution.

However, in the mid to late 1990s, most courts around Australia came to recognise the benefits of court-managed litigation, and the need for parties to make all reasonable efforts to settle a case, while minimising the cost and delay commonly associated with litigation.

In Victoria, for over two decades, the Supreme and County Courts have ordered the parties in a civil case to attend a compulsory mediation, prior to the commencement of the trial.

The Civil Procedure Act 2010 (Vic) (CPA) states that its overarching purpose is to ‘facilitate the just, efficient, timely and cost-efficient resolution of the real issues in dispute’.^[1] Court-ordered mediation fits fairly and squarely into this objective.

While the specific timing of the mediation is usually left to the discretion of the individual parties, a court would usually require the mediation to be held following the completion of the interlocutory steps and the service of reports on liability and damages. In Victoria, this is usually two to three months prior to trial.

In most circumstances, the parties will agree as to the date, time and location of the mediation and by whom it is to be conducted. If, however, the parties are unable to reach agreement, they can apply to have the matter determined by the court.

There is little empirical evidence as to whether or not a neutral venue makes any difference to the outcome of the mediation. My strong preference was always to hold a mediation in my law firm’s office, as I considered it would be more familiar and less intimidating for my plaintiff clients. However, the defendant would not always agree, in which case we would conduct the mediation in a hired mediation facility.

It is difficult to obtain reliable statistics as to the percentage of cases that settle at, or following, a court-ordered mediation. I would estimate, however, based upon my experience as a plaintiff solicitor and now as a judge, that in Victoria, it would be in excess of 70 per cent of issued cases.

The obvious benefits of a case being settled at mediation are as follows:

• no winners or losers, but instead a compromise for all parties;

• a certain outcome that is reached sooner in time than a court judgment;

• contained costs;

• less drain on public resources, as fewer cases proceed to trial;

• as confidentiality is often a term of settlement at mediation, unwanted publicity can be avoided; and

• the terms of settlement can be agreed between the parties, including a denial of liability or an apology, an obligation to do certain things, as well as the timeframe for payment. This may be especially beneficial in sexual abuse cases. For example, the terms of settlement may include an apology. For an uninsured defendant, the settlement may also include a timetable for the money to be paid by instalments over an agreed period, or after the sale of assets.

The key to a successful mediation is that all parties are fully prepared, both in respect of their own case, and the case they need to answer. Late service of reports (whether on liability or damages) tends to frustrate the other party and may jeopardise the goodwill usually required for a successful mediation to occur.

Ordinarily, the court will make orders to ensure that material (medical and other expert reports, witness statements and details of special damages) is exchanged well before the mediation, so as to enable adequate preparation. Compliance with such orders is essential to maximise the prospects of settlement.

The service of liability reports is critical in many personal injury cases, and especially in medical negligence claims. Such reports may address breach of duty, as well as causation. It is good practice for a solicitor to provide the opponent’s expert reports to its own experts, and to seek a written response, so that all matters can then be fully canvassed at the mediation. Failure to do so may lead to uncertainty at the mediation, which may then derail the settlement discussions.

It is also important to ensure that the mediator is fully briefed on all the relevant materials to the matter. This should include, as a minimum, all pleadings, as well as the medical and expert reports. It may also be beneficial to provide the mediator with key discoverable documents and witness statements.

Success in a mediation is dependent upon many factors, key of which I consider to be candour and a willingness by all parties to compromise in order to achieve a settlement.

In my experience, the willingness of the parties to speak candidly may be jeopardised if the actual litigants are present during the formal mediation discussions. As a personal injury solicitor, it was therefore my practice to recommend to my clients that they not sit in on the formal discussions. I was of the opinion that the defendant’s representatives would be more reserved if the client was in attendance, so my decision was, in part, designed to ensure that the defendant was always full and frank in their discussions with me. Another reason was my concern to avoid the possible intimidation of a plaintiff who was not experienced in the litigation process. While I had the knowledge and capacity to analyse and critique what was said by a defendant’s legal representative, I worried that my plaintiff client may be less resilient and may want to abandon their claim as a result of what they heard. However, this was not a hard and fast rule, and a plaintiff who wanted to attend to sit in and listen was always able to do so.

For those cases that do not settle at mediation, benefits still flow from participating in the process. Frank discussions on a without-prejudice basis can assist in narrowing the issues in dispute, thereby cutting the length of the trial and the associated costs.

It is necessary to bear in mind, however, that the above benefits presume that all parties are attending the mediation voluntarily, having adequately prepared to discuss all the issues and with instructions to resolve the case. When this does not occur, such a mediation may be a waste of both time and money.

As a plaintiff solicitor, I recall being extremely frustrated when a mediation was cancelled at the last minute, often because the defendant solicitor had not been able to obtain instructions from its client. However, experience taught me that, notwithstanding my annoyance and my client’s disappointment, there was little to be gained from pushing on with a pre-arranged mediation if the defendant was unable to fully participate. Instead, I would simply remind myself of the old expression about leading a horse to water...

A recent initiative of the County Court of Victoria, in cases with two or more defendants (or one or more defendants and one or more third parties), has been a requirement that those defendants attend a conference at least three days prior to the mediation, in an attempt to resolve any issue of contribution between those parties. This initiative is intended to ensure that adequate consideration is given to contribution prior to mediation, in order to minimise any unnecessary delay at the mediation itself.

The absence of counsel at a mediation may also impede the prospects of a settlement. In my experience in Victoria, it is still common for cases to settle just prior to the commencement of the trial, as it is the first occasion that all parties have briefed counsel.

Another recent initiative of the County Court of Victoria, at the commencement of some trials, is that the judge will either invite, or if appropriate order, the parties to attend a further mediation, to be conducted by a judicial registrar within the court precinct. Although this initiative has only been available for the last six months, it is had an impressive success rate, with over 50 per cent of cases settling after such a mediation.

It is the entitlement of each party to a dispute to pursue their legal claim and rights in the court. However, if active encouragement from the court, via a compulsory order for mediation, can achieve the timely and cost-effective resolution of cases, such a result should be supported by all within the profession. And just like the encouragement required to make a reluctant child put sunscreen on their face, it is an important responsibility that involves preparation and at times, persistence. The benefits of both are undeniable! Happy mediating!

Judge Andrea Tsalamandris is a judge of the County Court of Victoria. She was previously a Partner at Adviceline Injury Lawyers, and was a longstanding member of the ALA and its predecessor APLA.

---

^[1] Section 7(1) CPA. There are equivalent provisions in each state and territory.