^16

MEDIATION  The Nuts and Bolts

Paper  presented to
2003 Australian Plaintiff Lawyers Association
National Conference
Coolum, Queensland
17 October 2003

Justice  Terry Connolly
Supreme Court  of the Australian Capital Territory

Justice Connolly was appointed a Judge in January 2003. He was Master of the Supreme Court of the Australian Capital Territory from 1996-2003, and had been a Member of the ACT Legislative Assembly from 1990-
1996.  He was Attorney-General from 1991-1995.   He
was educated at Adelaide University (BA, LLB (Hons) and the Australian National University (LLM).  fu 2001 he undertook mediation training at Harvard Law School.

ADR- Is it really an alternative?

1. 		Calls for greater use of Alternative Dispute Resolution (ADR) have become, in recent years, something of a mantra for governments seeking to be seen to act to improve access to civil justice, not just here in Australia, but throughout the common law
_world.  _In _a _foreword _to _a _guide _to _mediation _and _conciliation _published _in _1999 _by

,

_the _National _Alternative _Dispute _Resolution _Advisory _Council ^1

_Federal _Attorney-

General Daryl Williams wrote:

The Government wants more disputes resolved through alternative dispute resolution than through court processes. It firmly believes that mediation and other alternative dispute resolution processes should be the norm rather than the exception.

2. 	There is perhaps a danger that the new language of ADR will blind us to the realities that the most common form of dispute resolution is and always has been negotiation.^2
It is important to remember this as ADR builds up its own culture as a discipline, both in practice and in the academy. Texts on ADR will recite a history of the emergence of ADR as a discipline, with seminal moments such as the Pound Conference in the United States in 1976 and the emergence ofProfessor Sanders' concept ofthe "multi- door courthouse" where mediation and negotiation are provided in addition to traditional adjudication.
3. 		But negotiation did not commence when people started writing academic articles about it in the 1970's.  We know that the overwhelming majority of civil cases settle before trial, and always have done. Statistics are notoriously fickle in this field, but it is broadly fair to say that about 95 per cent of civil claims - that is cases where proceedings have been issued will settle.  I have seen estimates that only 5 per cent of

^1 A Fair Say, Managing Differences in Mediation and Conciliation, Attorney-General's Department, Canberra
1999. Material published by NADRC is conveniently available on line at www.nadrc.gov.au.
^2  Dispute Resolution: Negotiation, Mediation and other Processes, Goldberg, Sanders and Rogers,  3rd   ed, Aspen, 1999

commercial disputes will reach the stage where proceedings are issued.   So the commercial matter going to trial may be 5 per cent of 5 per cent of disputes.  This is a high  rate of settlement indeed,  and the Attorney-General  can take comfort that the stated goal of ensuring that more disputes are resolved through alternative dispute resolution  than through court  processes  should  be achievable - indeed, it has been ever thus.
4. 		The  real  question  is  whether  more  formal  and  overt use  of  ADR  techniques  can improve  on the settlement rate that would have been achieved in any event through traditional methods of negotiation between the lawyers.  We are developing a growing body of leaning on ADR, journals are appearing, and efforts are underway, through the  efforts  of  the  National  Alternative   Dispute  Resolution  Advisory  Council,  to develop uniformity of terms used in ADR processes.  I wonder whether we would do well to start with the term "Alternative Dispute Resolution".   Alternative suggests a process somehow different to the norm - to use the Macquarie Dictionary definition "offering  standards  and criteria of behaviour  of a minority  group".   Negotiation  is accepted as an important form of ADR, but it is absurd to suggest that negotiated settlement is an "alternative" way of resolving a dispute.  In one sense the "alternative method"  of dispute  resolution  is the adjudicated  trial  that proceeds  to finality and delivery of judgment.  This is in truth the minority group of civil dispute.
5. 	Unfortunately, the term Alternative Dispute Resolution is now locked in, and even the efforts of commentators as eminent as Sir Laurence Street have been unsuccessful in
_adopting _a _term _other _than _"alternative"- _his _suggestion _being _"additional".^3

^3 Street, The Language of Alternative Dispute Resolution (1992) 66 ALJ 194

6. 		The fact that most cases will settle anyway is sometimes overlooked by enthusiasts for mandating ADR procedures. It is all very well to say that with such a procedure there is a high settlement rate, but there is an underlying high settlement rate already in routine personal injuries litigation. Can we say whether mandated ADR has improved the underlying rate?   Judge Richard Posner, doyen of the American law and economics movement, put the position well when he said:
What is overlooked is that the parties are put to the expense of arbitration in every case within some specified class, even though the benefits are obtained only in the subset of cases that settle and would not have done so had they not been sent to arbitration.  Since most cases settle anyway and some cases referred to arbitration do not settle, it is quite possible that only a tiny fraction of cases submitted to court annexed arbitration are settled because of the submission.  In that event the effect on the number of trials might be slight and might be dominated by the costs, which are incurred in every case within the
class in which arbitration is required.^4

7. 	Much work is being done across Australia to try  to develop meaningful statistical measures of the impact of ADR on court lists, but it seems to me that before we get too carried away with high reported rates of settlement through mediation, we should remember Posner's point, and rather than accept that mediation achieves, say, a 70 per cent settlement rate, we should ask ourselves whether the 70 per cent settlement rate reported is beyond the rate that those matters would have settled anyway due to traditional lawyer to lawyer negotiation.
_8. 	_The _National _Alternative _Dispute _Resolution _Advisory _Council _published _a _review _of

•

_statistical _material _in _May _2002^5

_This _shows _reported _settlement _rates _for _matters

referred to mediation for various courts in  the 1999-2000 year that range across

Family Court 61 per cent full settlement, 16 per cent partial settlement, Federal Court

^4 _Posner, _The _Federal _Courts, _Challenge _and _Reform, _Harvard _2nd _ed _1996, _p238
^5  _ADR _Statistics: _Published  _Statistics  _on  _Alternative _Dispute  _Resolution  _in  _Australia, _Attorney-General's
Department, Canberra, 2002

55 per cent, NSW Supreme Court 79 per cent, Queensland District Court 54 per cent, SA District Court 58 per cent, WA Supreme Court >70 per cent.  Not all courts have reported  ADR  outcomes,  including  my own  Court,  which  only  commenced  court annexed mediation in 2002, and it is clear that some, such as the Western Australian figure of greater than 70 per cent, are estimates.   While these figures are on the one hand encouraging, they do not tell us whether we get a greater settlement rate through court annexed mediation.   Most significantly, the New South.Wales  requirement that personal injury claims go through a form of compulsory mediation  are not reported on.
9. 	Anecdotally, my impression is that New South Wales practitioners are not enthusiastic about this process, and this is not surprising.   Although legislatures can develop enthusiasm for ADR that lead to requirements for mediation, most theorists of ADR would  accept  that  a mediation  where the parties voluntarily  enter the process will achieve a more positive result than a mediation  that is forced upon them.   Indeed, it has been said that the four essential characteristics of mediation  is that the process is
_accessible,  _voluntary,  _confidential  _and  _facilit _tive.^6       _Despite  _this,  _there  _is  _some

suggestion  in the United States that forcing the parties into a process of mediation, without of course mandating an outcome, may be productive:
One might assume that if individuals are forced to mediate they will be
less prone to settle than if they have chosen the process.   But the
evidence  is  otherwise.    Perhaps  this  is  because  although  many
disputants are unfamiliar with the process and hence do not use it voluntarily, when they get into it they find it to their liking.  Of course the cited research does not tell us whether the settlements arrived at in mandatory  mediation  were  as  uncoerced  as   those  in  voluntary

^6 M Noone, "Mediation" in the Essential Legal Skills Series, Cavendish, Londong 1996 cited in Colbran et al, Civil Procedure, op cit at 77

mediation.   But coercion into mediation does not necessarily mean coercion in mediation.^7

10. 		It is always difficult to say with certainty what is the rate of settlement, but the estimate I mentioned at the outset of about 95 per cent is often used.  A standard university text of civil procedure^8 advises aspiring lawyers that-

Litigation is best avoided, and generally is....American and Australian commentators suggest that as many as 95 per cent of cases filed never reach  trial ....Frustratingly,  they  cite  no  sources.    However,  the available evidence suggests that their estimates are only slight exaggerations.

The ACT Pilot

11. 		In the Australian Capital Territory our former Chief Justice, Jeffrey Miles AO, had a long-standing interest in mediation and proposed a trial of a mediation service to be provided for appropriate matters in the Supreme Court by the Master. The Australian Capital Territory Supreme Court consists of four resident Judges and the Master, and the principal jurisdiction of the Master is to hear and determine personal injury claims, whether from motor vehicle accidents industrial accidents, or public liability type matters.
12. 	I served as Master from 1996 to 2003, and in June 2001 I attended a residential training programme for mediation skills at Harvard Law School.  In March 2002 the Court, in a Notice to Practitioners (Annex 1), announced a pilot project for mediation of civil disputes.
13. 	The purpose of the pilot project was to allow the Court to determine whether the provision of such a service by a senior judicial officer, the Master, would be an

^7 _Goldberg, _Sander _& _Rogers, _op _cit, _393
^8  Colbram,  Reinhardt  et al, Civil Procedure: Commentary and Materials 2nd ed Butterworths, Sydney 2002,
p726

efficient use of  court resources by encouraging resolution of more complex civil matters that would otherwise take up considerable judge time.
14. 	No  special rules  of  court  were  made  for  this  project,  and  all  mediations were undertaken on a consensual basis, although in some cases there were strong suggestions from a judge.  Existing ACT legislation, the Mediation Act 1997, sets out the essential framework of privileges and immunities, and I was appointed a mediator pursuant to  this Act.    It is  clearly essential for any mediation  that the essential protections contained in this legislation be guaranteed, either by legislation, rules of court, or, as a least desirable option, in a contractual agreement between the parties
_and _the _mediator.^9  _These _are _(as _provided _in _sections _9-12 _of _our _Act):

evidence of communications in a mediation session, or documents prepared for or in the course of a mediation session, is not admissible in any proceeding (section 9).

a mediator shall not disclose what occurred in a mediation subject only to very strict exceptions (section 10).

the same privilege with respect to defamation that exists in relation to judicial proceedings operates in relation to a mediation session or documents prepared for that session (section 11).

a mediator has the same protection and immunity as a Judge of the Supreme Court in the performance in good faith of mediation functions (section 12).

15. 	The  style of  mediation  used in  Canberra is  that most  often  taught in  Australia, following the Harvard model, and that involves the mediator opening with a round table explanation to the parties of the mediator's role and the purpose of mediation, and then inviting the parties to provide an opening statement, either by themselves or through their legal representative, in the presence of the other party.   The mediator then breaks into individual sessions with each party and their representative, and will

^9 Sample mediation agreements are set out in Appendix 2 and 3 of L Boulle, Mediation: Skills and Techniques, ButteiWorths, Chatswood, 2001.

carry positions and offers back ahd forth between the parties in individual sessions. Where appropriate, further round table discussions can be conducted.   In the individual sessions it is important that the mediator clarify with the party what can be communicated to the other side, and what information remains confidential between the mediator and the party. The importance of a guarantee of secrecy and defamation protection is immediately apparent.
16. 		Parties seeking to use the service formally instigate the process by way of a Notice of Motion returnable in the Master's Friday motion list, although the practice developed of an informal approach through the Master's associate to advise of the intention to refer to mediation.  Perhaps not surprisingly, a number of matters resolved between the making of such an approach and the formal instigation of mediation.  Once an order was made for mediation - which had effect only as a direction made pursuant to the normal power of the Court to give directions with respect to the course of the litigation under Order 33 of our Rules - I would convene an informal preliminary conference in my chambers with the parties' legal representatives for any pre­ mediation directions to be agreed, and for a timeline for the mediation session, which would then be scheduled.
17. 		The Notice to Practitioners refers to "civil matters that would otherwise go to trial before a judge".   This was a deliberate formulation, designed to exclude from the project the normal run of personal injuries matters.    I declined an application to mediate on an employment personal injuries claim for two reasons.  The first is that the primary role of the ACT Master is to exercise the jurisdiction of the Court to hear and determine personal injury claims at trial. By seeking to mediate such a matter, the Master would, of course, disqualify himself from subsequently hearing the matter if the mediation was unsuccessful. This would require a Judge to then hear the case. It

would not be an efficient use of the Court's  resources for the Master to seek to mediate in matters within his jurisdiction.
18. 		The second reason for declining to provide the mediation service in personal injury claims  is  that  there  exists  in  the  ACT a  well-established practice of  settlement conferences in personal injuries claims.   This practice evolved from discussions between the NRMA - the sole provider of Compulsory Third Party insurance for ACT registered vehicles, and the ACT Law Society, but now operates beyond CTP motor claims, and indeed attendance  at  such  conferences is  now  an  important part of personal injury practice.
19. 		The emergence of a legal culture where round table settlement conferences are seen as a normal part of preparation for, and resolution of, a personal injuries claim, is, it seems to me, important. We have not had to introduce compulsory pre-trial ADR for our personal injuries list, partly because we confidently expect that in most cases genuine efforts have been made at achieving settlement, by way of a meaningful round table settlement discussion, rather than merely by way of exchanging a written offer and counter offer. This is probably still the traditional method of negotiation, and the ADR theorists would draw a distinction between traditional legal negotiation of this type,  very  much  adversarial  negotiation,  with  what  is  frequently  described  as

•

_"principled _negotiation"^10

20. 	A well-established local legal culture where meaningful settlement conferences are regarded  as  the  norm  avoids  some  of  the  problems of  the  "warrior  mentality'' identified by Justice Trevor Olsson, who has said:
If a lawyer, at the outset, speaks of attempts to settle or compromise, other actors in the dispute often jump to the wrong conclusion.  First,

^10 R Fisher & W Ury, Getting to Yes: Negotiating Agreements Without Giving In, Houghton Mifflin, Boston
1981

the client will almost certainly begin to think that the wrong lawyer has  been  engaged  and  that  legitimate  interests  are  not  being recognised and  are  unlikely  to  be  pursued with desirable  vigour. Secondly, the representative of the other party to the dispute is likely to assume  that  there  cannot  be  merit  in  the  claim  and  will  react accordingly.	The essential  and  inherent problem with traditional litigation in many common law countries is that its whole focus is upon one party attempting to win a contest and vanquish the opponent. However, it is now recognised that dispute resolution, in the wider sense, ought to have as its goal finding the fairest and most practical

.

_solution _to _a _matter _in _disput/ ^1

21. 		While I would not go so far  as to say that the typical settlement conference in Canberra approaches this paradigm of  an insurer and plaintiff lawyer having the common goal of the fairest and most practical solution to the problem, it is fair to say that there is a well-developed culture of meaningful settlement activity, and as a consequence the Court does not see the need, and does not have the resources, to provide a mediation service for routine personal injuries litigation.
22. 		The Notice to Practitioners also refers to "matters that are  otherwise approaching readiness for  trial  and  would be  expected  to  take  up  considerable court  time". Mediation practitioners and theorists would combine in stressing the advantages of early mediation.	The  ACT pilot  is  acknowledged to  be  more  of  an  end  stage mediation.  The purpose of the pilot was to see whether the resources of the Court could be more efficiently deployed by making available the services of the Master for a day in a matter in the hope, from the Court's viewpoint, of taking away the need for multiple days of Judge time at trial.	The expectation was  that matters going to mediation would normally be at or near certificate of readiness stage.  At this point pleadings  would  be  closed,  and  the  parties  would  have  made  some  informed

^11 T Olsson, Combating  the Warrior Mentality,  inC Sampford, S Blencow and S Condlin, Educating Lawyers for a Less Adversarial System, Federation Press, Sydney, 1999, p5

predictions about the number of days the hearing would take, and witnesses likely to be required.
23. 	A degree of discretion would be exercised here, and there was one matter where the parties approached me about an early stage mediation in a matter that would otherwise have been very complex and costly, and would have involved a very long, complex and costly process of pre-trial discovery.   I indicated informally that I would be prepared to mediate the matter, and later learned that the dispute had subsequently settled. Just as the availability of a date before a judge can often be the most effective spur to settlement, so too can the opening of a realistic process of mediation be the catalyst for the parties to reach a compromise themselves.
24. 	The Notice to Practitioners states that the pilot program is "not  intended to be a substitute for alternative dispute resolution processes that are otherwise available". Again, court provided end stage mediation is not intended to discourage parties from undertaking earlier mediation. The Court is aware that there is a developing expertise in mediation practice in Canberra, as in other centres. The court service, for which no fee is charged, was certainly not intended to undermine the further development of commercial mediation practices in Canberra.
The outcomes of mediation

25. 		The expectation at the outset of the pilot program was that it would need to run for about a year before meaningful observations could be made.   As events transpired, before the conclusion ofthe year I was appointed a Judge last February, and no further mediations have occurred since then, although I did proceed with a preliminary conference  in  a  matter  that  had  been  scheduled  before  my  appointment  was announced, but that matter subsequently settled.

26. 		During the period March to November 2002 there were six orders for mediation, and preliminary conferences were heard in five matters.   Only four matters ran to a complete one day mediation session, and three of these matters settled, with a form of consent order worked through and the order subsequently being made.   For the purpose of the pilot I have referred to a mediation application as a single "matter" even where there may in fact be multiple civil actions set down in the court.
27. 		The practice developed of setting down mediations on a Thursday, because the nature of the Master's list in the ACT was that this was the most likely day free from trials. There were some difficulties with trials running over, and the intention for 2003 was to set aside Mondays for mediations before the commencement of a weekly running list for personal injury trials.
28. 	The first matter to go to mediation was a Domestic Relationships Act matter, that involved  the  redistribution  of  assets  following  the  breakdown  in . a  de  facto relationship in circumstances where during the course of the relationship all of the assets had been transferred into the sole name of the female partner.   The second matter involved two associated defamation actions arising from a family dispute over the  distribution  of  assets  of  a  person  killed  in  an  industrial  accident.     The compensation  and  superannuation,  a  very  considerable  sum,  had  gone  to  the deceased's former de facto partner, and other family members were claiming that this had not been a genuine relationship, and that there had been fraud.
29.	Had both these matters been heard before a Judge they would have gone over several days of evidence, and would have involved extensive cross-examination, as the affidavit evidence that had been prepared in anticipation of trial revealed significant issues of credit and allegations by each party.

30. 	The third matter did not result in a settlement. This involved an action for recovery of monies allegedly stolen by an employee. The defendant denied any improper taking at all, and this really came down to a did she or didn't she take the goods issue, where any acknowledgement of any taking would probably have amounted to an admission of taking of the entire documented losses. This matter will go to trial.
31. 		The fourth, and to my mind most successful example of the benefits of a mediation service, involved a restructure of complex property and corporate structures following the breakdown of a marriage.  The daughter of a successful business couple married, and over time the assets of the business passed to this couple.   Over the years the business grew, and various structures were developed on financial and legal advice. When the husband left the marriage, the entire structure became contentious, and there were at the point at which the matter was referred for mediation a series of actions and counter actions in our court under the Corporations Act and claiming equitable remedies, as well as proceedings in the Family Court along the usual lines.  All the parties, being the former husband and wife, and the wife's parents, agreed to attempt to mediate a single outcome for all of these causes.   Over a very long day such an outcome was eventually reached. As well as resolving the complex financial issues, it effectively allowed each party to continue to operate successful businesses, and importantly left the parties, if not fully reconciled, at least less bitter than they had been when they entered the process, and certainly less bitter than if seeking relief under the Corporations Act and at equity had run to trial with a single winner and loser.
32.		One issue that has emerged from this limited sample is the advantage of a mediation occurring under the auspices of a senior officer of the court - in this case the Master, a judicial officer - who has the authority to make orders by consent in his judicial

capacity immediately  after the mediation.   A similar role could be performed by the Court's  Registrar.   In the first matter I have described, the parties agreed on a fairly complex  set of  points, involving  as is often the case with bitter property disputes, quite intricate details over who got what item of household equipment, and they were both of the view that it would be better to settle the final form of the order overnight and list it in  the following  day's  motions  list.   Needless  to say, one party thought overnight that they might be able to get a better outcome, and there was a delay of about  two  weeks,  during  which  extensive  and  no  doubt  expensive  negotiations proceeded before everyone agreed to come back and take out the order on the original terms.  In the other matters we were able to enter consent judgments immediately following resolution.
Court Mediation- a worthwhile use of resources

33. 	Although the Canberra pilot program has involved only a small sample, and was not able to run over a full year, it is fair to say that the allocation of a limited amount of the Master's court time has lead to resolution in complex matters that would, if they had run, have otherwise  taken up extensive judge time.   These were all matters that were otherwise ready to be listed and where a certificate of readiness was available, so while it is impossible  to say that they would not have settled without mediation, they were certainly ready to go to trial, and there had not been a resolution.   Each of the matters, if they had run, would have occupied  at least  three days of judge time, so from the court's  perspective, there has been a real saving.
34. 		From the clients'  perspective, there has clearly been a real cost saving in resolving the matter by mediation.  A question that is frequently asked at the preliminary conference is whether it is necessary to brief counsel for the mediation.   This is always a matter for the parties, but I have said that there is certainly no need to involve a barrister, as

the forensic skills needed for trial advocacy are not necessary or even appropriate in a mediation, which should not be and should not be seen to be a "mini trial" or even worse a rehearsal for a trial.  Indeed, I think that there are real advantages where the legal representative at the mediation is the solicitor who has had the carriage of the matter, is most familiar with the file, and most importantly is familiar with, and has the confidence of, the client.  The ability to pick up and rapidly master a brief is one that we all recognise as the mark of a skilled barrister, but in a mediation, where in theory it is the parties themselves who are making the decisions and adjusting their position, the most important thing, it seems to me, is for a good relationship between the party and the legal representative to be built up over time.
35. 		The skill the legal representative will bring to assist the client in a mediation will be a different skill to that needed in a trial. The mediation will seek to identify and resolve issues between the parties and their respective interests, which may be different to the legal positions which will be identified by the solicitor, and will be the basis of any pleaded case.   Take a workplace dispute leading to a dismissal - the lawyer will identify the possible breach of the employment contract giving rise to the cause of action, and possible restraint of trade issues if the former employer seeks to prohibit the former employee from engaging in competitive trade.  The legal position will be clearly identified.
36. 		The real cause of the dispute may be poor workplace practices leading to a breakdown of the employment relationship.  If these issues emerge in the mediation, it may be in both parties best interests that the problems be identified and resolved, allowing the employee to return to a more harmonious and productive workplace.

,

37.      At  contract and  equity  specific  performance is  not  available in  an  employment contract^12 because it was felt no court could order a harmonious workplace.^13 This is true, when the court focuses only on the legal question, but mediation, by going
behind the legal questions to the real issues, and looking to advance the interests of both parties, may be able to achieve an effective return, to an improved workplace. ^14
38. 	In each case, in my opening remarks after explaining the role of the mediator and the differences between my role as a mediator and my usual role as Master in presiding at a civil trial, I have spoken directly to the parties about the issue of litigation costs, and costs at a trial. In all cases where there was a successful resolution I have been told by
the solicitors afterwards that, although they had obviously made the same points, my · remarks, made of course in the environment of the court, seemed to have real impact, and focussed their minds on the potential costs oflitigating to finality and losing.
39. 	This focuses attention on  what the theorists refer to as BATNAIWATNA.   The authors of Getting to Yes developed the concept of Best Alternative to Negotiated Agreement - and its counterpart - Worst Alternative to Negotiated Agreement to reinforce the importance of focussing the parties to a negotiation, or mediation, on their real choices. The BATNA would, in a civil claim, be a judgment for the plaintiff for the damages as particularised, plus costs.  It is human nature that a plaintiff may often, in their mind, have taken this sum and spent it.  Any negotiated settlement less than  this  can  thus  be  seen  as  unattractive, until  their  mind  is  focussed on  the WATNA- a judgment for the defendant, with costs, perhaps on an indemnity basis.

^12 Rigby v Connol (1880) 14 ChD 482, JC Williamson Ltdv Lukey &Mulholland (1931) 45 CLR 282
^13 _Atlas _Steels _(Australia) _v _Atlas _Steels _Ltd _(1948) _49 _SR _NSW _157, _per _Sugerman _J _at _161.
^14 _The _process _of _identifying _interests _and _issues _is _well _described _in _Chapter _4 _of _Boule, _op _cit _note _9

40. 		Each of the matters, where there was a successful outcome, involved elements of family or relationship breakdown, and a high level of bitterness which was evident on the documents and pleadings.  In these circumstances, a mediated outcome is clearly in the best interests of the parties, because it provides the best chance of rebuilding a relationship, or at least reducing the bitterness, and is greatly preferable to a winner take all outcome, where one party will be believed and will win, no doubt feeling vindicated, but the other will perceive themselves as being not believed, and losing, with resulting magnification of the bitterness.
41. 		Overall, the experience of a mediation pilot has been positive.  By providing a court annexed mediation, the  ACT  Supreme Court has hopefully raised the awareness within the profession in Canberra of mediation as a useful tool in dispute resolution. It is hoped that court annexed mediation will be able to be offered in the future by the Master or Registrar and, pending this, referrals to accredited mediators are being made. Although ADR claims to be a recent discipline, no one has better described the benefits than Abraham Lincoln, who cautioned law students:
Persuade your neighbours to compromise whenever you can.   Point out to them how the nominal winner is often a real loser - in fees, expenses and  waste  of  time.   As a  peacemaker the  lawyer  has  a superior opportunity of being a good man. There will still be business enough.^15

^15 Abraham Lincoln, Notes for a law lecture, cited in MA Glendon, A Nation Under Lawyers, Harvard VP 1994,
p 55.

_Annex  _1

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

NOTICE TO PRACTITIONERS MEDIATION BY MASTER

The Supreme Court is now able to offer a mediation service provided by the Master for civil matters that would otherwise go to trial before a Judge.

This is by way of a pilot program and at present no rules have been made.  It is expected that mediations would only occur with the consent of the parties and should be instigated by way of a Notice of Motion.

The Master has been appointed as a mediator pursuant to the Mediation Act 1997 and the privileges and immunities provided for in sections 9-12 of that Act will apply.

No fee will be charged for this service.  The purpose of the pilot program is to determine whether the provision of mediation services will assist in the efficient conduct of litigation. Mediations will be offered in matters that are otherwise approaching readiness for trial and would be expected to take up considerable court time.  The pilot program is not intended to be a substitute for alternative dispute resolution processes that are otherwise available.

(Mrs) J.E. CIRCOSTA Registrar

5 March 2002