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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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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


Slide24 l.jpg

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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


Slide46 l.jpg

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


Slide47 l.jpg

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


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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


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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


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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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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

  • Termination of Mediation

  • The mediation shall be terminated:

  • by a written settlement agreement by the parties;

  • (b) by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or,

  • (c) by a written declaration of a party or parties to the effect that the mediation proceedings are terminated.

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


Slide52 l.jpg

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

Mediation Settlement

Parties who undertake to mediate under these rules agree to carry out any settlement agreement without delay.

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


Slide53 l.jpg

The Legislative Basis of ADR

Assisted Dispute Resolution

What is ADR?

Terms

Tonga Supreme Court Mediation Rules

ADR in the Court Environment

Techniques

Mediation

C - Commencing the Mediation

Rationale

Advantages

Types of cases and Limits

  • Initiating Mediation

  • Any party or parties to a civil proceeding in the Court may initiate mediation by filing a written request with the Court. The Court may also refer a dispute to mediation. Upon a request by a party or a referral by the Court, the Mediation Coordinator will contact all parties within seven (7) days to arrange the mediation meeting.

  • When deciding whether to refer a matter to mediation the court should consider:

  • Attitudes of the parties

  • Stage of preparation of the Court proceedings

  • Progress of other applications which ma impact on any decision

  • Nature of the issues in dispute; ie: law, expert evidence, credit

  • Impediments to settlement

  • The Mediation Coordinator will record the request or Court referral and the information about contacting the parties on a Mediation Referral Form attached to these rules

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


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The Legislative Basis of ADR

Assisted Dispute Resolution

What is ADR?

Terms

Tonga Supreme Court Mediation Rules

ADR in the Court Environment

Techniques

Mediation

C - Commencing the Mediation

Rationale

Advantages

Types of cases and Limits

2. Panel of Mediators

The Court, shall establish and maintain a panel of mediators and shall appoint mediators are provided in these rules.

3. Appointment of Mediator

The Mediation Coordinator shall appoint the mediator from the panel of accredited mediators.

Normally, a single mediator will be appointed, unless the parties agree to co-mediators.

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


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The Legislative Basis of ADR

Assisted Dispute Resolution

What is ADR?

Terms

Tonga Supreme Court Mediation Rules

ADR in the Court Environment

Techniques

Mediation

C - Commencing the Mediation

Rationale

Advantages

Types of cases and Limits

4. Challenge of Mediator

Persons serving as mediators shall be neutral, independent and impartial. No person shall serve as a mediator in any dispute in which that person has any financial or personal interest in the matters in dispute between the parties or the result or outcome of the mediation.

6. Authority of Mediator

1. The mediator is neutral and 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 adopt a flexible approach to a process of mediation that is fair to all parties and is acceptable to them.

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


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The Legislative Basis of ADR

Assisted Dispute Resolution

What is ADR?

Terms

Tonga Supreme Court Mediation Rules

ADR in the Court Environment

Techniques

Mediation

D – General Conditions

Rationale

Advantages

Types of cases and Limits

  • 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.

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


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The Legislative Basis of ADR

Assisted Dispute Resolution

What is ADR?

Terms

Tonga Supreme Court Mediation Rules

ADR in the Court Environment

Techniques

Mediation

E – Mediation Process

Rationale

Advantages

Types of cases and Limits

  • The process has seven stages.

  • Stages 1-4 and 6-7 are usually conducted in joint session. Stages 1-4 focus on the past and present and stages 5-7 focus on the future. At all stages, the mediator will assist the parties to define their own interests and needs and understand those of the other parties.

  • Preparation and Mediator’s Opening Statement

  • Parties’ Statements and Mediator’s Summaries

  • Identification and Listing of Issues (Agenda Setting)

  • Joint Exploratory Discussion

  • Private Meeting

  • Joint Negotiation

  • Final Session

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


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The Legislative Basis of ADR

Assisted Dispute Resolution

What is ADR?

Terms

Tonga Supreme Court Mediation Rules

ADR in the Court Environment

Techniques

Mediation

I - Termination of Mediation

Rationale

Advantages

Types of cases and Limits

  • The mediation shall be terminated:

  • By a written settlement agreement by the parties;

  • By a declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or

  • The mediator shall communicate the outcome of the mediation to the Mediation Coordinator in writing within three days of termination.

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


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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


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Pre-Mediation

Arrangements made for Mediation

Focus on past problems

Mediation

Stage 1: Mediator’s Opening Statement

Stage 2: Parties’ Statements and Mediator’s Summaries

Stage 3: Identification of Issues and Agenda Settings

Stage 4: Joint Session. Clarification and Exploration of Issues

Stage 5: First Private Sessions: Caucus

Focus on future solutions

Stage 6: Facilitating Negotiation

Stage 7: Mediation Outcome: Agreement,

Adjournment or Termination

Post-Mediation

Action required after Mediation

Implementing ADR

Assisted Dispute Resolution

What is ADR?

Terms

ADR in the Court Environment

Stages of mediation

Techniques

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


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Implementing ADR

Assisted Dispute Resolution

What is ADR?

Terms

ADR in the Court Environment

Stages of mediation

Techniques

Mediation

  • What makes it work?

  • Confidence in the mediator

  • Confidence in the institution that refers the matter

  • Confidentiality of the mediation

  • Neutrality of the mediator

  • Flexibility of approach

  • Culturally appropriate approach

  • Other

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


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Implementing ADR

Assisted Dispute Resolution

What is ADR?

Terms

ADR in the Court Environment

Things to Consider

Techniques

Mediation

  • Who is to attend?

  • Authority to settle

  • Clients/Parties

  • Lawyers

  • Others

  • Pre mediation meeting

  • Positions papers?

  • Strategy?

  • Cultural considerations

  • Formality/Informality

  • Gender

  • Authority

  • Decision making models

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


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Implementing ADR

Assisted Dispute Resolution

What is ADR?

Terms

ADR in the Court Environment

Things to Consider

Techniques

Mediation

  • Does it fit all contexts/situations?

  • Cultural considerations

  • History of litigation

  • Time pressures

  • Number of parties/clients

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


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Implementing ADR

Assisted Dispute Resolution

What is ADR?

Terms

ADR in the Court Environment

Things to Consider

Techniques

Mediation

  • Selection of mediator:

  • Expertise:

    • Past knowledge of case

    • Timing/Availability

    • Relationship to parties

    • Gender

    • Cultural considerations

  • Planning/Preparation:

    • ‘Get to know the facts’

    • Look for strengths and weaknesses

    • Venue - Influenced by type of case

  • 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


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    Implementing ADR

    Assisted Dispute Resolution

    What is ADR?

    Terms

    ADR in the Court Environment

    Referrals

    Techniques

    Mediation

    • Who refers?

    • Judicial officers

    • Court staff

    • The disputants (and/or their lawyers)

    • Who is it referred to?

    • Court referral to ADR can involve many different ADR providers:

    • ADR may be provided by a judicial officer

    • ADR may be provided by non-judicial officers employed by the court (Registrars of the Court)

    • ADR may be provided by an external organisation or individual (a family court)

    • nominated by the court

    • chosen by the 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


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    Implementing ADR

    Assisted Dispute Resolution

    What is ADR?

    Terms

    ADR in the Court Environment

    Referrals

    Techniques

    Mediation

    • Court referral and party consent

    • Some courts can refer parties in a proceeding to mediation without their consent

    • When should courts refer disputes to ADR?

    • Pre-filing

    • Before or after discovery

    • Post-trial/pre-appeal

    • During the trial or the appeal

    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


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    Implementing ADR

    Assisted Dispute Resolution

    What is ADR?

    Terms

    ADR in the Court Environment

    Expert Conferences

    Techniques

    Mediation

    Rationale

    A conference between opposing expert witnesses can significantly reduce the extent of factual disputes between parties and the time involved in hearing witnesses.

    It can thus be useful for procedural orders to be made before any pleadings are filed for the exchange by the parties of draft expert reports. Orders can then be made for what is sometimes known as a “hot tub” involving each senior expert for each party under the supervision of an impartial third party.

    The purpose of a “hot tub” is to enable the experts to identify the issues and principles about which they agreed or disagreed. Legal advisers are not present. Often as a result of such discussions between the experts, an agreement can be reached between them as to certain propositions. This agreement is then provided to the legal advisers and can be adopted as part of the evidence.

    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


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    Implementing ADR

    Assisted Dispute Resolution

    What is ADR?

    Terms

    ADR in the Court Environment

    Expert Conferences

    Techniques

    Mediation

    Rationale

    Practice Direction: Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia

    Experts’Conference

    3.1 If experts retained by the parties meet at the direction of the Court, it would be improper conduct for an expert to be given or to accept instructions not to reach agreement. If, at a meeting directed by the Court, the experts cannot reach agreement about matters of expert opinion, they should specify their reasons for being unable to do so.

    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


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    Implementing ADR

    Assisted Dispute Resolution

    What is ADR?

    Terms

    ADR in the Court Environment

    Early Neutral Evaluation/Preliminary Opinion

    Techniques

    Mediation

    What is proposed by an ENE?

    Rationale

    Advantages

    • ENE is a process by which applicants and parties obtain from an experienced neutral evaluator a non-binding, reasoned, oral or written evaluation of the merits of their case.

    • Courts can refer a matter to ENE with consent of the parties.

    • Such a referral can be provided for by statutory framework – such as ss. 53A, 53B and 53C of the Federal Court of Australia Act.

    • An ENE is informal and confidential

    • It is likely to involve the exchange of some evidence, possibly obtained separately as preservation evidence by a Judge, and statements presenting in broad terms the factual and legal bases of the positions.

    • The parties and court cam agree upon the selection of the evaluator.

    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


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    Implementing ADR

    Assisted Dispute Resolution

    What is ADR?

    Terms

    ADR in the Court Environment

    Early Neutral Evaluation/Preliminary Opinion

    Techniques

    Mediation

    What is proposed by an ENE?

    Rationale

    Advantages

    • The Evaluator is likely to be a person who will have:

      •  Knowledge of the jurisdiction  Respect of the parties Authority (that is the participants will value their opinion)

    • An evaluator will consider the available evidence and will usually (but not always) hear from the participants in the conference about the issues in dispute and the strengths of each participant’s case. Oral presentations may be made at an ENE and may even be made by native title claimants themselves.

    • All written and oral communications made in or in connection with the ENE are confidential.

    • The evaluator will offer an assessment - a non-binding opinion as to the strengths and weaknesses of the respective cases. The assessment is not arbitration.

    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


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