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Assisted Dispute Resolution (ADR) for the Pacific

Assisted Dispute Resolution (ADR) for the Pacific . Assisted Dispute Resolution. What is ADR?. Terms. What is ADR?. ADR in the Court Environment. Techniques. Mediation. Rationale . Advantages. ADR in the Court Environment. Implementing ADR. Types of cases and Limits. Success.

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Assisted Dispute Resolution (ADR) for the Pacific

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  1. Assisted Dispute Resolution (ADR) for the Pacific

  2. Assisted Dispute Resolution What is ADR? Terms What is ADR? ADR in the Court Environment Techniques Mediation Rationale Advantages ADR in the Court Environment Implementing ADR Types of cases and Limits Success ADR and Case Management Assisted Dispute Resolution (ADR) in the Court Environment Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR ADR and Case Management The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Judicial Perspectives on ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  3. Assisted Dispute Resolution What is ADR? Terms What is ADR? ADR in the Court Environment Techniques Mediation Rationale Advantages ADR in the Court Environment Implementing ADR Types of cases and Limits Success ADR and Case Management Assisted Dispute Resolution (ADR) in the Court Environment Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR ADR and Case Management The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Judicial Perspectives on ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  4. What is ADR? Terminology frequently used in respect of some ADR practices within the Court environment Assisted Dispute Resolution What is ADR? Terms ADR in the Court Environment Techniques Mediation ADR is an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance. Arbitration is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination. Case appraisal is a process in whicha dispute resolution practitioner (the case appraiser) investigates the dispute and provides advice on possible and desirable outcomes and the means whereby these may be achieved. Case presentation (or Mini-trial)is a process in which the parties present their evidence and arguments to a dispute resolution practitioner who provides advice on the facts of the dispute, and, in some cases, on possible and desirable outcomes and the means whereby these may be achieved. Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  5. What is ADR? Terminology frequently used in respect of some ADR practices within the Court environment Assisted Dispute Resolution What is ADR? Terms ADR in the Court Environment Techniques Mediation Co-mediation is a process in which the parties to a dispute, with the assistance of two dispute resolution practitioners (the mediators), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Conciliation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. Diversionary,victim-offender,community accountability, restorative and family group conferencing are processes which aim to steer an offender away from the formal criminal justice (or disciplinary) system and refer him/her to a meeting (conference)with the victim, others affected by the offence, family members and/or other support people. The practitioner who facilitates the conference may be part of the criminal justice system (for example, a police or corrections officer) or an independent person. Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  6. What is ADR? Terminology frequently used in respect of some ADR practices within the Court environment Assisted Dispute Resolution What is ADR? Terms ADR in the Court Environment Techniques Mediation Diversionary,victim-offender,community accountability, restorative and family group conferencing are processes which aim to steer an offender away from the formal criminal justice (or disciplinary) system and refer him/her to a meeting (conference)with the victim, others affected by the offence, family members and/or other support people. The practitioner who facilitates the conference may be part of the criminal justice system (for example, a police or corrections officer) or an independent person. Early neutral evaluation is a process in which the parties to a dispute present, at an early stage in attempting to resolve the dispute, arguments and evidence to a dispute resolution practitioner. That practitioner makes a determination on the key issues in dispute, and most effective means of resolving the dispute without determining the facts of the dispute. Expert appraisal or Expert assisting is a process in whicha dispute resolution practitioner, chosen on the basis of their expert knowledge of the subject matter (the expert appraiser), investigates the dispute. The appraiser then provides advice on the facts and possible and desirable outcomes and the means whereby these may be achieved. Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  7. What is ADR? Terminology frequently used in respect of some ADR practices within the Court environment Assisted Dispute Resolution What is ADR? Terms ADR in the Court Environment Techniques Mediation Facilitation is a process in which the parties (usually a group), with the assistance of a dispute resolution practitioner (the facilitator), identify problems to be solved, tasks to be accomplished or disputed issues to be resolved. Facilitation may conclude there, or it may continue to assist the parties to develop options, consider alternatives and endeavour to reach an agreement. The facilitator has no advisory or determinative role on the content of the matters discussed or the outcome of the process. Family and child mediation is defined in the Family Law Act as 'mediation of any dispute that could be the subject of proceedings (other then prescribed proceedings) under [the] Act and that involves (a) a parent or adoptive parent of a child; or (b) a child; or (c) a party to a marriage' (section 4). Indigenous dispute resolution refers to wide range of processes used to resolve dispute involving Indigenous people, including the various processes described in this glossary. Other examples include elder arbitration, agreement-making and consensus-building. In the Australian context the term Indigenous refers specifically to the Aboriginal and Torres Strait Islander peoples. Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  8. What is ADR? Terminology frequently used in respect of some ADR practices within the Court environment Assisted Dispute Resolution What is ADR? Terms ADR in the Court Environment Techniques Mediation Judicial dispute resolution (or judicial ADR) is a term used to describe a range of dispute resolution processes, other than adjudication, which are conducted by judges or magistrates. An example is judicial settlement conference. Mediationis a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement. Mini-trial is a process in which the parties present arguments and evidence to a dispute resolution practitioner who provides advice as to the facts of the dispute, and advice regarding possible, probable and desirable outcomes and the means whereby these may be achieved. Multi-party mediation is a mediation process, which involves several parties or groups of parties. Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  9. What is ADR? Terminology frequently used in respect of some ADR practices within the Court environment Assisted Dispute Resolution What is ADR? Terms ADR in the Court Environment Techniques Mediation On-line dispute resolution, ODR, eADR, cyber-ADRDefinition of Dispute Resolution includes usual forms of Alternate Dispute Resolution, eg mediation, arbitration, early neutral evaluation, but also encompasses the use of on line technology in the hearing and decision making in cases or parts of cases in appropriate circumstances. The term “online” refers to the use of the Internet or related communications technologies (such as email, videoconferencing, or interaction via a website or chat room) as the primary method of communication during a transaction or related dispute resolution proceeding. PDR(Primary Dispute Resolution)is a term used in particular jurisdictions to describe dispute resolution processes which take place prior to, or instead of, determination by a court. A family court, for example, may encourage disputing family members to use primary dispute resolution mechanisms such as counselling or mediation to resolve matters instead of using court orders. Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  10. What is ADR? Terminology frequently used in respect of some ADR practices within the Court environment Assisted Dispute Resolution What is ADR? Terms ADR in the Court Environment Techniques Mediation Shuttle mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement without being brought together. The mediator may move between parties who are located in different rooms, or meet different parties at different times for all or part of the process. Statutory conciliation takes place where the dispute in question has resulted in a complaint under a statute. In this case, the conciliator will actively encourage the parties to reach an agreement which accords with the advice of the statute. Victim-offender mediation is a process in which the parties to a dispute arising from the commission by one of a crime against the other, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process. Extracted from Discussion Paper 2003 National Alternative Dispute Resolution Advisory Council (NADRAC) Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  11. Assisted Dispute Resolution What is ADR? Terms What is ADR? ADR in the Court Environment Techniques Mediation Rationale Advantages ADR in the Court Environment Implementing ADR Types of cases and Limits Success ADR and Case Management Assisted Dispute Resolution (ADR) in the Court Environment Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR The Legislative Basis of ADR Various Statutory Regimes ADR and Case Management Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Judicial Perspectives on ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  12. Benefits of ADR It is sometimes the case that the remedies available to judges in resolving disputes before them in Court are not always appropriate. ADR increases participation by the disputing parties and there is a greater likelihood of them living harmoniously in the future than if they had a decision imposed on them by the Court. Other benefits include: • Cutting down court backlog of cases • Costs savings to courts and litigants • Informal atmosphere • Full involvement of parties, mostly without lawyers • Discussions and negotiations are confidential and without prejudice • Privacy for those involved • Capacity for compromise – give and take • Provision for apology • Cases are dealt with quicker than via court proceedings • No stress or embarrassment by examination or cross examination • Outcome is “owned” by the parties – less likely to cause resentment than if imposed by the court • Mediation is not legally focused – parties seek resolution • Non adversarial and non threatening • More suitable to traditional culture • No external publicity

  13. ADR in the Court Environment Assisted Dispute Resolution What is ADR? Terms Common techniques ADR in the Court Environment Techniques Mediation • Case conferences • Mediation: Court annexed • External • Arbitration • Conciliation • Compulsory conferences (“Hot Tub”) • Early Neutral Evaluation • Use of Referees Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  14. ADR in the Court Environment Assisted Dispute Resolution What is ADR? Court Annexed Mediation Terms ADR in the Court Environment Techniques Mediation Rationale Advantages Types of cases and Limits Success Court annexed mediation – Where a judge makes an order that the parties attend mediation before a non-judge official, or someone agreed upon by the parties and then formally appointed ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  15. ADR in the Court Environment ADR in the Court Environment Assisted Dispute Resolution What is ADR? Court Annexed Mediation Terms ADR in the Court Environment Techniques Mediation Rationale Rationale Advantages • Reduce delay, clear lists, reduce backlog • Assist in management of cases • Reduce cost (to parties; court; government; taxpayer) • Is often more appropriate to the needs of the case/parties than litigation and an imposed solution • The potential to produce fair, equitable outcomes in all the circumstances • The potential to produce enduring agreements • The potential to preserve ongoing relationships between the disputants • Preserve and, if possible, increase party respect for and confidence in the justice system • Encourage parties to use alternative methods in the future • Encourage parties to use ADR earlier, including pre-filing • Educate/encourage/respond to needs of legal profession • Change the legal culture Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  16. ADR in the Court Environment Assisted Dispute Resolution What is ADR? Court Annexed Mediation Terms ADR in the Court Environment Techniques Mediation • Advantages • Court-annexed mediation can be provided at a reduced cost to the parties in comparison to external mediators engaged by the parties. • Responsibility for the training of court-annexed mediators (and therefore the quality of service) remains with the court. • The availability of the court’s facilities and the registrar mostly enable the matter to be dealt with immediately. • The flexibility of registrars to conduct mediations at short notice is also a consideration, given that applications for injunctions in a range of intellectual property and industrial matters are often referred to mediation and accommodated in a short time frame in settings of urgency Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  17. ADR in the Court Environment ADR in the Court Environment Assisted Dispute Resolution What is ADR? Court Annexed Mediation Terms ADR in the Court Environment Techniques Mediation Rationale Advantages What types of cases can be referred to mediation? All cases before a court may be susceptible to settlement by mediation, however it will depend on the particular circumstances of the case Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences • Are there limits? • The capacity of the parties to participate safely and effectively on their own behalf • Current fear of violence by a party • The existence and nature of any power imbalance, and the extent to which any power imbalance can be redressed • Any relevant court orders which make ADR difficult (eg: a restraining Order) • Cultural factors Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  18. ADR in the Court Environment Assisted Dispute Resolution What is ADR? Measuring ADR success Terms ADR in the Court Environment Techniques Mediation Rationale • There are relatively few widely used success measures. The most frequently used include (Henderson, 1996: 121, citing Kressel and Pruitt, 1989): • User satisfaction • Rates of compliance • Rates of settlement • Nature of agreements • Efficiency • Reduced costs • Reduced delay • Improvement in the post dispute climate Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  19. Assisted Dispute Resolution What is ADR? Terms What is ADR? ADR in the Court Environment Techniques Mediation Rationale Advantages ADR in the Court Environment Implementing ADR Types of cases and Limits Success ADR and Case Management Assisted Dispute Resolution (ADR) in the Court Environment Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR ADR and Case Management The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Judicial Perspectives on ADR Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  20. ADR and Case Management Assisted Dispute Resolution What is ADR? Terms How does ADR relate to Case Management? ADR in the Court Environment Techniques • Case management is the antithesis of the idea that the role of the judge is merely to sit there as an umpire when the case is ready to proceed: • Objectives: • Early judicial control • Continuous judicial control • Short scheduling of events • Management of conflict in lawyers’ schedules, and • Certainty of events Mediation Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  21. ADR and Case Management Assisted Dispute Resolution What is ADR? Terms How does ADR relate to Case Management? ADR in the Court Environment Techniques • Case management is the antithesis of the idea that the role of judge is merely to sit there as an umpire when the case is ready to proceed: • More specifically: • Judicial commitment and leadership; • Court consultation with legal profession; • Court supervision of case progress; • Standards and goals; • A monitoring and information system; • Scheduling for credible trial dates; • Court control of adjournments; and • Identify cases for Alternative Dispute Resolution (ADR) Mediation Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  22. ADR and Case Management Assisted Dispute Resolution What is ADR? Terms ADR in the Court Environment Case management conferences Techniques Mediation Conference/Conferencing is a general term, which refers to meetings in which the parties and/or their advocates and/or third parties discuss issues in dispute. Conferencing may have a variety of goals and may combine facilitative and advisory dispute resolution processes. Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  23. ADR and Case Management Assisted Dispute Resolution What is ADR? Terms ADR in the Court Environment Case management conferences Techniques Mediation • Legislative base Rationale Advantages • Often simply a vehicle for mediation • Sometimes for a specific purpose directed by docket or other ordering Judge • If settlement negotiation is the aim of the negotiations, confidentiality agreement obtained at start • Process adapted to the needs of the situation Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  24. Assisted Dispute Resolution What is ADR? Terms What is ADR? ADR in the Court Environment Techniques Mediation Rationale Advantages ADR in the Court Environment Implementing ADR Types of cases and Limits Success ADR and Case Management Assisted Dispute Resolution (ADR) in the Court Environment Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR ADR and Case Management The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Judicial Perspectives on ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  25. Judicial Perspectives on ADR Assisted Dispute Resolution What is ADR? Terms ADR in the Court Environment Judges as Mediators: A Chapter III Prohibition? Techniques Mediation “A court that makes available a judge or a registrar to conduct a true mediation is forsaking a fundamental precept upon which public confidence in the integrity and impartiality of the Court system is based. Private access to a representative of the court by one party, in which the dispute is discussed and views are expressed in the absence of the other party, is a repudiation of basic examples of natural justice and absence of hidden influence that the community rightly expects and demands that courts observe. … The involvement of a custodian of power as mediator imports the risk of a party feeling a sense of coercion and hence disenchantment with the mediated outcome that can reflect back adversely on the court. … The warning that I venture to give… is that against the use by a court of a procedure that is in its very substance antithetical to the maintenance of public confidence…in the judicial system.” Sir Laurence Street, the former Chief Justice of New South Wales Supreme Court and now a leading mediator Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  26. Judicial Perspectives on ADR Assisted Dispute Resolution What is ADR? Terms ADR in the Court Environment Judges as Mediators: A Chapter III Prohibition? Techniques Mediation “There is no reason why, in the vast majority of cases, mediation should not be compulsory in the sense of being a compulsory condition of the right of any party to have the dispute brought on for trial … But let it be court-attached mediation. Either the mediator should be a court officer or a private mediator selected by the parties, by lot or by rotation. In either case, the fees should be a charge on public revenue.” Brennan CJ, former Chief Justice of the High Court of Australia Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  27. Assisted Dispute Resolution What is ADR? Terms What is ADR? ADR in the Court Environment Techniques Mediation Rationale Advantages ADR in the Court Environment Implementing ADR Types of cases and Limits Success ADR and Case Management Assisted Dispute Resolution (ADR) in the Court Environment Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR ADR and Case Management The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Judicial Perspectives on ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  28. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Various Statutory Regimes ADR in the Court Environment Techniques Mediation • There are numerous examples of statutory regimes which provide for ADR: • The Federal Court of Australia Act 1976 (Cth) provides for an alternative dispute resolution scheme. Section 53A(1) of the Act states: • Subject to the Rules of the Court, the Court may by order refer the proceedings in the Court, or any part of them or any matter arising out of them, to a mediator or an arbitrator for mediation or arbitration, as the case may be, in accordance with the Rules of the Court. • Samoa’s Alternative Dispute Resolution Act 2007 provides for referral of parties to arbitration. Section 14 of the Act states: • For the purposes of applying alternative dispute resolution procedures the Court may determine that a civil matter be referred to alternative dispute resolution procedures under the Arbitration Act 1976 if it thinks fit. Rationale Advantages Types of cases and Limits Success ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  29. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 1 - Mediation or arbitration procedure Types of cases and Limits Success ADR and Case Management If the Court or a Judge orders proceedings, part of proceedings, or any matter arising out of proceedings, to be referred to a mediator or an arbitrator, the mediation or arbitration must proceed in accordance with this Order unless the Court or a Judge orders otherwise. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  30. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 2 - Application of Order Types of cases and Limits Success ADR and Case Management (1) Division 2 of this Order does not apply if a Judge undertakes a mediation. (2) Nothing in this Order affects an order or direction made under Order 10, rule 1. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  31. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 3 - If a Judge undertakes mediation Types of cases and Limits Success ADR and Case Management If a Judge undertakes a mediation, the Judge may give any directions with respect to the conduct of the mediation that the Judge thinks fit. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  32. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 4 - Adjournment of proceedings Types of cases and Limits Success ADR and Case Management (1) If the Court or a Judge makes an arbitration or mediation order in relation to proceedings, the proceedings stand adjourned until the mediator or arbitrator reports back to the Court unless the Court or a Judge considers that in all the circumstances the proceedings should not be adjourned. (2) If the Court or a Judge considers it appropriate, the proceedings may be adjourned to a fixed date when the mediator or arbitrator must report to the Court on progress in the mediation or arbitration. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  33. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 5 - Court may terminate mediation or arbitration Types of cases and Limits Success ADR and Case Management (1) Nothing in this Order prevents the Court from: (a) terminating a mediation or an arbitration at any time; or (b) terminating the appointment of a mediator or an arbitrator; or (c) appointing a new mediator or arbitrator to replace a mediator or an arbitrator who has died, or ceased to hold office, or whose appointment has been terminated. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  34. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 5 - Court may terminate mediation or arbitration Types of cases and Limits Success ADR and Case Management (2) If, when the Court appoints a new arbitrator, the Court considers it appropriate in all the circumstances, the Court may order that: (a) the new arbitrator must treat any evidence given, or any record, document or anything else produced, or anything done, in the course of earlier proceedings as if it had been given, produced or done before or by the new arbitrator; or (b) any interim award made in the course of the earlier proceedings is to be taken to have been made by the new arbitrator; or (c) the new arbitrator must adopt and act on any determination of a matter made by the previous arbitrator without applying his or her own judgment to the matter. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  35. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 5 - Court may terminate mediation or arbitration Types of cases and Limits Success ADR and Case Management (3) If the Court appoints a new mediator, the Court may order that the mediation continue in any way the Court directs. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  36. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 6 - Nomination of mediator Types of cases and Limits Success ADR and Case Management (1) As soon as practicable after a mediation order is made, the Registrar must: (a) nominate a person as the mediator; and (b) give the parties written notice: (i) of the name and address of the mediator; and (ii) of the time, date and place of mediation; and (iii) of any further documents that one or more of the parties must give direct to the mediator for the purposes of the mediation. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  37. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 6 - Nomination of mediator Types of cases and Limits Success ADR and Case Management (2) In fixing the time and date for the mediation, the Registrar must: (a) consult the parties to ascertain their wishes; and (b) have regard to the time fixed by the Court within which the mediation must be commenced, or completed, or both. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  38. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 7 - Conduct of mediation conferences Types of cases and Limits Success ADR and Case Management (1) A mediation conference must be conducted: (a) in accordance with any directions given by the Court or a Judge; and (b) as a structured process in which the mediator assists the parties by encouraging and facilitating discussion between the parties so that: (i) they may communicate effectively with each other about the dispute; and (ii) if agreement is reached and if the parties consent, the agreement can be included in a consent order under Order 35, rule 10. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  39. The Legislative Basis of ADR The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 7 - Conduct of mediation conferences Types of cases and Limits Success ADR and Case Management (2) If part only of proceedings before the Court is the subject of a mediation order, the mediator may, on the conclusion of the mediation, report back to the Court in terms agreed between the parties. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  40. The Legislative Basis of ADR The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Federal Court of Australia Rules Court-Annexed Mediation ADR in the Court Environment Techniques Mediation Rationale Advantages ORDER 72 RULE 8 - Adjournment or termination of mediation Types of cases and Limits Success ADR and Case Management (1) If the mediator considers that a mediation should not continue, the mediator must, subject to any order of the Court or a Judge: (a) terminate the mediation; and (b) report back to the Court. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  41. The Legislative Basis of ADR The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Federal Court of Australia Rules Arbitration ADR in the Court Environment Techniques Mediation Rationale Advantages Types of cases and Limits ORDER 72 RULE 9 - Appointment of arbitrator Success ADR and Case Management Case Management (1) If an arbitration order is made, the Court or a Judge may, with the consent of the parties, nominate a particular person to be the arbitrator. (2) A nomination under subrule (1) must be accompanied by the arbitrator's written consent to the appointment. Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  42. The Legislative Basis of ADR The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Federal Court of Australia Rules Arbitration ADR in the Court Environment Techniques Mediation Rationale Advantages Types of cases and Limits ORDER 72 RULE 9 - Appointment of arbitrator Success ADR and Case Management Case Management (3) The parties may, at the time of appointment, or at any subsequent directions hearing, ask the Court or a Judge to make orders by consent setting out: (a) the manner in which the arbitration is to be conducted; and (b) the time by which the arbitration is to be completed; and (c) the manner in which the arbitrator, and the expenses of the arbitration, are to be paid. (4) The parties may ask the Court or a Judge to indicate to the arbitrator the manner in which the arbitrator's report on the proceedings, part of the proceedings, or any matter arising out of the proceedings, are to be reported back to the Court. Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  43. The Legislative Basis of ADR The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Federal Court of Australia Rules Case Management Conferences ADR in the Court Environment Techniques Mediation Rationale Advantages Types of cases and Limits Success ADR and Case Management ORDER 10 RULE 1 - Directions hearing — general Case Management Conference Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators (1) On a directions hearing the Court shall give such directions with respect to the conduct of the proceeding as it thinks proper. (1A) In any proceeding which is to be heard by a Full Court, whether in the original or appellate jurisdiction, such directions as is thought proper with respect to the conduct of the proceeding may be given by the Court constituted by a single Judge. The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  44. The Legislative Basis of ADR The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Federal Court of Australia Rules Case Management Conferences ADR in the Court Environment Techniques Mediation Rationale Advantages Types of cases and Limits Success ADR and Case Management ORDER 10 RULE 1 - Directions hearing — general Case Management Conference Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators (2) Without prejudice to the generality of subrule (1) or (1A) the Court may: The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules (xx) the use of assisted dispute resolution (including mediation) to assist in the conduct and resolution of all or part of the proceeding (g) order, under Order 72, that proceedings, part of proceedings or a matter arising out of proceedings be referred to a mediator or arbitrator; Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  45. The Legislative Basis of ADR The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Federal Court of Australia Rules Federal Court of Australia Rules Case Management Conferences ADR in the Court Environment Techniques Mediation Rationale Advantages Types of cases and Limits Success ADR and Case Management ORDER 10 RULE 1 - Directions hearing — general Case Management Conference Case Management Case Management Conferences (2) Without prejudice to the generality of subrule (1) or (1A) the Court may: Judicial Perspectives on ADR Judges as Mediators (h) order that the parties attend before a Registrar for a conference with a view to satisfying the Registrar that all reasonable steps to achieve a negotiated outcome of the proceedings have been taken, or otherwise clarifying the real issues in dispute so that appropriate directions may be made for the disposition of the matter, or otherwise to shorten the time taken in preparation for and at the trial; (i) in a case in which the Court considers it appropriate, direct the parties to attend a case management conference with a Judge or Registrar to consider the most economic and efficient means of bringing the proceedings to trial and of conducting the trial, at which conference the Judge or Registrar may give further directions; The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  46. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Kosrae, FSM Mediation Rules ADR in the Court Environment Techniques Mediation Rationale Advantages RULE 1 - Commencing the Mediation Types of cases and Limits Success ADR and Case Management Notice of Mediation Any party or parties to a dispute may initiate mediation by filing a written request and the filing fee with the Court. The Court may also refer a dispute to mediation. Upon receipt of such a request, the Chief Clerk will contact the other parties within ten days and attempt to obtain their agreement to mediation. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  47. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Kosrae, FSM Mediation Rules ADR in the Court Environment Techniques Mediation Rationale Advantages RULE II - The Mediator Types of cases and Limits Success ADR and Case Management Panel of Mediators The Court, by General Court Order, shall establish and maintain a panel of mediators and shall appoint mediators as provided in these rules. Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  48. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Kosrae, FSM Mediation Rules ADR in the Court Environment Techniques Mediation Rationale Advantages RULE II - The Mediator Types of cases and Limits Success • Authority of Mediator • The mediator does not have the authority to impose a settlement on the parties but will seek to assist them in reaching a satisfactory resolution of the dispute. The mediator is authorized to conduct joint and separate meetings with the parties and to make oral and written recommendations for settlement. Whenever necessary, the mediator may also obtain expert advice concerning technical aspects of the dispute, provided that the parties agree and bear the costs of obtaining such advice. Arrangements for obtaining such expert advice shall be made by the mediator or the parties, as the mediator shall determine. • 2. The mediator is authorized to end the mediation whenever, in the judgment of the mediator, further efforts at mediation would not contribute to a resolution of the dispute between the parties. ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  49. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Kosrae, FSM Mediation Rules ADR in the Court Environment Techniques Mediation Rationale Advantages RULE III - General Conditions Types of cases and Limits Success • Representation • By agreeing to mediate under these rules, the parties undertake to conduct the mediation in a bona fide and forthright manner and make a serious attempt to resolve the dispute. • … • 3. The parties shall make every reasonable effort to ensure that their representatives have the necessary authority to settle the dispute. ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

  50. The Legislative Basis of ADR Assisted Dispute Resolution What is ADR? Terms Kosrae, FSM Mediation Rules ADR in the Court Environment Techniques Mediation Rationale Advantages RULE III - General Conditions Types of cases and Limits Success Identification of Matters in Dispute (optional, in discretion of Presiding Judge) 1. At least ten (10) days prior to the first scheduled mediation session, each party shall provide the mediator with a brief summary setting forth the issues that need to be resolved, its position with respect to these issues, and all information reasonably required for the mediator to understand these issues. The parties shall mutually exchange such memoranda. Confidentiality 1. Confidential information disclosed to a mediator by the parties or participants in the course of the mediation shall not be divulged by the mediator. All records, reports or other documents received or made by the mediator while serving in that capacity shall be confidential. The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversarial proceeding or judicial forum. ADR and Case Management Case Management Case Management Conferences Judicial Perspectives on ADR Judges as Mediators The Legislative Basis of ADR Various Statutory Regimes Federal Court of Australia Rules Kosrae, FSM Mediation Rules Tonga Supreme Court Mediation Rules Implementing ADR Stages of mediation Things to consider Referrals Expert Conferences ENE / Preliminary Opinion

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