Over the last three years the number of cases diverted to mediators from the NSW Supreme Court has grown by 128%. 40% of those cases were diverted to private mediators according to the Supreme Courts annual review. Of the cases referred to mediation the overall majority relate to cases involving claims for family provision. Justice Spigelman the Chief Justice says “over the last few years we have encouraged and then made mandatory, mediation in family provision cases and that is a significant part of the increase.” “Anything that saves court time and legal profession time and the individuals involved have substantial savings.”
The court adopted a policy some years ago aimed at encouraging mediation which has led to more registrars being trained and certified as mediators.
“What that does is bring forward the settlements considerably as well as increase the number of settlements.”
The court adopted the rule some years ago that enabled it to order mediation notwithstanding the wishes of the parties about whether or not they wish to participate in a mediation.
Justice Spigelman recognises that it might appear counter-intuitive to be ordering parties to mediate “But in fact it works. People are reluctant to admit that they might have some weakness in their case and therefore don’t offer to settle or mediate. Whereas if they had been forced into it, experience is that reluctant starters often become active participants. So although it is counter-intuitive, ordering someone to mediate actually works.”
We note this is in contrast with the concerns or reservations expressed about early mediation by Justice Finkelstein which are referred to in my earlier blog.
What is clear is that mediation as part of the court process is here to stay. It is also clear that robust representation at mediation and thorough preparation are also vital to the individual participant’s success in going through the process. To be forced into a mediation urgently or be under-prepared carries the very real risks foreshadow by Justice Finkelstein, however not to participate in the process misses the opportunity of obtaining an early resolution that is agreed between the parties, rather than imposed and is also likely to lead to the resolution of the proceedings at minimum costs to the parties.
If you would like to arrange advice or representation for a mediation please do not hesitate to contact our office.