Court-ordered mediation + ADR before trial (state + federal)
Courts may order parties to attempt ADR before trial.
Who must comply
Parties to civil proceedings in the Federal Court of Australia, and their lawyers, who must help the party comply with the s 37N duty. Criminal proceedings are excluded (s 53A(3)). State and territory court users are covered by each court's own legislation and rules.
What triggers it
An order of the Court referring the proceeding, or part of it, to mediation or another alternative dispute resolution process under s 53A.
When due
By the dates in the referral order and any directions the Court gives under s 37P about practice and procedure.
Evidence required
The referral order and directions; record of attendance and of the authority of the person attending for the business; settlement terms or the mediator's report on outcome; litigation file notes showing conduct consistent with the s 37N overarching purpose.
Max penalty
No fixed penalty. In exercising its discretion on costs, the Court must take into account any failure to comply with the s 37N duty, and it can order a lawyer to bear costs personally for failing to help the client comply (s 37N(4)-(5)).
Summary
A business that sues or is sued in the Federal Court can be sent to mediation whether or not it agrees. Section 53A of the Federal Court of Australia Act 1976 lets the Court, by order, refer a proceeding (or any part of it) to a mediator, or to another suitable person for an alternative dispute resolution process, and a referral other than to arbitration may be made with or without the consent of the parties. Arbitration requires consent. Anything said, and any admission made, at a mediation conference held under a s 53A referral is inadmissible in any court (s 53B). Separately, s 37N requires parties, including in settlement negotiations, to act consistently with the overarching purpose of resolving disputes justly and as quickly, inexpensively and efficiently as possible. State and territory courts run their own referral schemes under their own rules.
Topics
Related
Frequently asked questions
- Who must comply with Court-ordered mediation + ADR before trial (state + federal)?
- Parties to civil proceedings in the Federal Court of Australia, and their lawyers, who must help the party comply with the s 37N duty. Criminal proceedings are excluded (s 53A(3)). State and territory court users are covered by each court's own legislation and rules.
- What triggers Court-ordered mediation + ADR before trial (state + federal)?
- An order of the Court referring the proceeding, or part of it, to mediation or another alternative dispute resolution process under s 53A.
- When is Court-ordered mediation + ADR before trial (state + federal) due?
- By the dates in the referral order and any directions the Court gives under s 37P about practice and procedure.
- What is the maximum penalty for Court-ordered mediation + ADR before trial (state + federal)?
- No fixed penalty. In exercising its discretion on costs, the Court must take into account any failure to comply with the s 37N duty, and it can order a lawyer to bear costs personally for failing to help the client comply (s 37N(4)-(5)).
- What evidence is required for Court-ordered mediation + ADR before trial (state + federal)?
- The referral order and directions; record of attendance and of the authority of the person attending for the business; settlement terms or the mediator's report on outcome; litigation file notes showing conduct consistent with the s 37N overarching purpose.
Source: https://www.legislation.gov.au/C2004A01586/latest/text. Rules Mate is not a law firm. Always verify against the live regulator source before acting.