Judicial Mediation - Family Law
Earlier this year, His Honour Chief Judge Alstergren of the Federal Circuit Court of Australia introduced a process of “Judicial Mediation”.
Parties to family law proceedings may now ask for their matter to be referred to a Judge to conduct a mediation of the matter in an attempt to settle all or some of the disputed issues between them without a trial.
Implementing this measure is aimed at addressing widespread criticisms of the Family Law system, particularly in relation to the significant delays families are experiencing in having their matters resolved.
Eligibility for Judicial Mediation
To apply for Judicial Mediation, your matter must first be suitable. The suitability of a matter for Judicial Mediation is determined with reference to the following criteria:
Whether both parties are legally represented;
If one or both parties are self-represented, the docket Judge must determine whether the matter is suitable for Judicial Mediation;
For parenting matters – where there are no allegations of serious risk to the child/children or family violence;
Whether there is a risk that the costs and time of a trial are disproportionate to the subject matter of the dispute;
Whether the parties have been compliant with any previous orders to attend private mediation;
Any other matter that the docket Judge considers to be suitable.
Applying for Judicial Mediation
Parties may make an oral application in Court for Judicial Mediation or in writing to the Docket Judge in Chambers.
If making an oral application, it is generally advisable to discuss that course of action with the other side beforehand as the Judge will ask them whether they consent or oppose your application. You will also need to be prepared to set out why your matter is suitable for Judicial Mediation with reference to the suitability criteria. The same process applies where you are responding to an oral application for your matter to be referred to Judicial Mediation.
Written applications must be supported by a bullet point summary of reasons that address your matter’s suitability for Judicial Mediation. Once a written application for Judicial Mediation has been made, the other side has fourteen (14) days to provide their written consent or opposition to that application to the Docket Judge in Chambers.
Where parties consent, the application for Judicial Mediation will be determined by the Docket Judge in Chambers. Conversely, where the application is opposed a hearing date will be set for the application to be determined.
Judicial Mediation as an Effective Measure
When Judicial Mediation was introduced it was, quite surprisingly, met with significant backlash from legal practitioners. Amongst the criticisms are that engaging in Judicial Mediation effectively takes a Judge away from deciding cases for a day in a system that is already inundated with cases and under-resourced.
Be that as it may, the idea behind Judicial Mediation is to encourage parties to resolve their dispute and this does have merit. By placing the parties in front of a current sitting Judge and giving them the opportunity to hear what a Judge thinks about their matter can be a very good reality test of the strengths and weaknesses of the parties’ cases.
Ultimately, it is important to remember that Judicial Mediation is not a mandatory process and will only be initiated voluntarily by one or both parties.
If you think judicial mediation is an avenue that may assist you to resolve your family law dispute, call us on (07) 3209 7000 to book a consultation with one of our family lawyers to discuss your options.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication.
© Richard Hoare & Co Solicitors