This Practice Note commenced on 21 September 2023 and will apply to all referrals to judicial mediations on or after that date.
Practice Note SC Gen 6
Judicial Mediation Guidelines
1. INTRODUCTION
1.1 The Chief Justice has authorised the issue of the following Practice Note.
1.2 The purpose of this Practice Note is to set out the guidelines for the referral of civil proceedings to judicial mediation and the procedures for the conduct of judicial mediations.1
2. COMMENCEMENT
2.1 This Practice Note was issued on 1 December 2019 and commences on 1 January 2020 and will apply to all referrals to judicial mediation made on or after that date.
3. DEFINITIONS
3.1 In this Practice Note:
Judicial officer includes a Judge of the Court, Associate Judge, or Judicial Registrar.
4. REFERRAL TO JUDICIAL MEDIATION
4.1 The Supreme Court of Victoria is committed to resolving disputes in the most efficient manner possible, including the use of non-adjudicative processes. The use of private mediation practitioners has been and remains critical to the administration of justice in Victoria. The Court will continue to encourage, and where appropriate direct, parties to engage in private mediation in the majority of civil proceedings coming before the Supreme Court.
4.2 Under s 66 of the Civil Procedure Act 2010 the Court is authorised to refer a proceeding to appropriate dispute resolution which includes a judicial resolution conference, often referred to as a judicial mediation.
4.3 Judicial mediation is not a substitute for mediation by appropriately qualified private mediators, rather it is another option that may be employed in appropriate cases.
4.4 Under s 68(1) of the Civil Procedure Act 2010, a judicial officer acting as a judicial mediator has the same immunity as a judge acting judicially.
4.5 A matter referred to judicial mediation will usually have one or more of the following features:
- one or more parties with limited resources;
- a substantial risk that the costs and time of a trial would be disproportionately high compared to the amount in dispute or the subject matter of the dispute;
- an estimated trial length that would occupy substantial judicial and other court resources; or
- aspects that otherwise make it in the interests of justice that the matter be referred to judicial mediation.
4.6 There are proceedings which, as a matter of policy, may not be appropriate for judicial mediation. The following disputes will not ordinarily be referred for judicial mediation:
- cases involving the resolution of a matter of public importance which, in the public interest, ought to be heard in open court; and
- cases in which the commission of a crime or serious misconduct is alleged in the context of a civil proceeding.
5. PREPARATION
5.1 Directions regarding preparation for a judicial mediation will be made at a directions hearing or conveyed to the parties by a court officer.
5.2 The parties will be told when and where the mediation will take place and who is to attend. Parties will usually be provided with a statement of the proposed course of the mediation.
5.3 Parties will be informed prior to the commencement of a mediation of any pre-conditions, expectations or particular requirements. These may include a requirement to provide specified documents and other information, position papers or confidential offers.
6. CONFIDENTIALITY
6.1 Parties and other participants are to protect the confidentiality of all that is said and done by any person in the course of the conduct of a mediation. Parties and practitioners are also referred to s 131 of the Evidence Act 2008 and s 67 of the Civil Procedure Act 2010.
6.2 It will be the usual practice of the mediator to destroy all materials provided to or prepared by the mediator and any other court officer participating in the mediation, following completion of the mediation, whether successful or not.
7. ATTENDANCE AT MEDIATIONS
7.1 A mediator may authorise the attendance at a mediation of persons other than the parties and their legal representatives. Participation of all persons in the mediation will be under the direction and control of the mediator.
7.2 The mediation must be attended by parties or representatives of the parties who have full authority to settle the proceeding.
7.3 Mediations can be conducted in-person, online or a hybrid of the two. Parties should consider how the mediation is to be conducted and if they agree about the mode of mediation, should notify the Chambers of the judicial officer who will be making a mediation order. If the mediation order does not provide for the mode of mediation, the Court’s ADR Centre will list the mediation as an in-person mediation. If after the mediation order is made, the parties agree that the mediation is to be conducted in a way that differs from in-person mediation, or cannot agree on the way the mediation should be conducted, please refer to the Notice to Profession – New SCV Mediation Centre dated 21 April 2023.
7.4 The mediator will inform the parties of the identity of all attendees prior to the commencement of the mediation.
8. LEGAL ADVICE OR ASSISTANCE
8.1 A mediator will not evaluate issues in dispute or provide legal advice to parties, and will not generally assist with the preparation of any terms of settlement.
9. MEETING SEPARATELY WITH THE PARTIES- CAUCUSING
9.1 Mediation styles and practices will differ between judicial mediators. Some mediators may be prepared to caucus, depending on the nature and circumstances of the case. Other mediators may not be prepared to do so.
9.2 Information provided by a party to a mediator in a separate session will not be disclosed to any other party unless the mediator has been expressly authorised to do so. This will not restrict the mediator from terminating the mediation upon receiving information which by its nature is open to an interpretation of illegal, improper or unethical conduct.
10. ADJOURNMENT
10.1 A mediator may adjourn the mediation to continue at a later date, either under the conduct of the same or a different mediator.
10.2 If the proceeding fails to settle at mediation, the mediator may give directions for the further conduct of the proceeding in her/his capacity as a Judge, Associate Judge or Judicial Registrar, by consent or at the request of the parties.
11. FINALISATION
11.1 If the matter resolves at mediation, and the parties consent, the mediator can make orders finalising the matter.
12. FURTHER COURSE OF PROCEEDINGS POST MEDIATION
12.1 Subject to paragraphs 10.2 and 11.1, no member of the Court will hear and determine an issue in a proceeding in which that person acted as a mediator, or where he or she has become acquainted with any confidential information relating to the mediation of the dispute (e.g. where confidential information was provided in preparation for a mediation that was subsequently conducted by another judicial officer).
AMENDMENT HISTORY
30 January 2017: This Practice Note was issued on 30 January 2017 and replaced Practice Note No 2 of 2012.
1 December 2019: Amendments to paragraphs 2, 4, 8, 9, 10, 11 and 12.
21 September 2023: Amendments to paragraphs 1 and 7.
Vivienne Macgillivray
Executive Associate to the Chief Justice
21 September 2023
This Practice Note also applies to mediations conducted by a Prothonotary or a Deputy Prothonotary.