Can Judges Mediate? CASE NOTE: Wardman v Macquarie Bank

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[Free Image by Augusto Ordonez, Pixabay]

On 10 April 2019, Judge Dowdy of the Federal Circuit Court published his reasons for refusing to make a consent order that an employment law matter be referred to mediation by a Judge.

The parties in Wardman & Ors v Macquarie Bank Ltd [2019] FCCA 939 applied for consent orders to resolve some procedural matters and refer the substantive dispute to mediation by a Judge, pursuant to s 34 of the Federal Circuit Court Act 1999 (Cth) and rule 45.13B of the Federal Circuit Court of Australia Rules 2001 (Cth). Rule 45.13B(2)(a) explicitly anticipates that an order referring a proceeding to mediation may order that the mediator appointed be a Judge:

…(2) The mediator for the mediation must be: (a) a Judge; or…

Nonetheless, Dowdy J contacted the parties informing them that he believed he should not make an order that a Judge act as a mediator. Instead, he made an order for a Registrar to act as mediator. His Honour’s reasoning for his refusal to appoint a Judge as mediator can be summarised by the following 3 propositions:

  1. Mediators and Judges perform distinct roles
  2. Acting as a mediator is incompatible with the Constitutional role of a Judge (and Rule 45.13B(2)(a) is invalid)*
  3. Judges are not qualified to act as mediators

1. Mediators and Judges perform distinct roles

Source of authority

  • The Constitutional power to mediate is the Conciliation power in s 51(xxxv).
  • A Judge exercises judicial power under s 71 of the Constitution.

Facilitation of consensus v determination of dispute

  • Mediators aim to resolve disputes by consensus.
  • Judicial power is an elusive concept, but at its core is the power to decide controversies (ie, to determine the outcome of disputes).

Context of decision-making

  • Mediation is typically private, confidential, informal and non-adversarial.
  • Judicial power must be administered in public and reasoning must be published. The judicial process is primarily adversarial.

2. Acting as a mediator is incompatible with the Constitutional role of a Judge

Judicial power must be exercised according to judicial process

  • Judicial process requires (with limited exceptions) open and public inquiry, application of rules of natural justice, identification of law and facts, and application of law and facts to decide the outcome (see Grollo v Palmer).
  • Mediators meet in private, sometimes with only one party at a time, do not decide facts or law, do not make decisions, mediated decisions are not required to be made according to legal principles, and neither reasons nor decisions are published.

Judges cannot perform functions incompatible with judicial power

  • Judges cannot exercise non-judicial functions that would prejudice their capacity to discharge effectively the judicial powers of the Commonwealth
  • Rule 45.13B should be read to preclude a Judge who has presided over a mediation from subsequently hearing or determining the case.

[31] If I had acted as a mediator in this case as requested by the parties I would have sterilised and rendered inoperable my judicial power to hear and determine the case. In other words, by agreeing to act as a mediator I would have undertaken a function which was incompatible with, and which would have precluded me from, discharging my obligation as a Judge to hear and determine a matter which in the regular course had be docketed to me by the registry of the Court.

Courts and Judges cannot and do not provide advisory opinions

  • Judge Dowdy referred to Plaintiff M68/2015 v Minister for Immigration and Border Protection as authority for the proposition that Chapter III Courts and Judges cannot provide advisory opinions.
  • Mediators in court-connected mediations “invariably” provide advisory opinions.

[32]…parties to a mediation invariably expect the mediator to give his or her views on their respective prospects in the context of the existing or foreshadowed litigation which the mediation is seeking to obviate and on the reasonableness of any proposed settlement. This is the case whatever the kind or model of mediation being undertaken. It is particularly the case that economically weaker and more vulnerable parties desire the opinion of the mediator on such matters.

Mediation is not a traditional function of courts

  • Some functions other than the adjudication of rights were traditionally exercised by courts and therefore fell within the concept of judicial power contemplated by the authors of the Constitution. For example, administration of trust assets, winding up companies, maintenance and guardianship of infants, grants of probate, and making of rules of court.
  • The process of mediation cannot be accepted to have been a traditional or historical feature of the powers exercised by courts.

Mediation functions are distinct from judicial power

  • This proposition was confirmed by the Boilermakers case – a power to prevent and settle disputes by conciliation and arbitration is completely outside the realm of judicial power.
  • Although mediators and Judges both practise fairness, patience, courtesy and procedural fairness, only a Judge determines a justiciable issue.
  • Because the power to mediate falls outside judicial power, Dowdy J concluded that:

[38]…neither Parliament nor the Judges of this Court can make rules of court that authorise or require a Judge of this Court to act as a mediator

  • While Courts and Judges regularly encourage settlement and adjourn hearings to allow settlement negotiations to occur, it is not considered appropriate for Judges to participate in those negotiations themselves.
  • There is no inherent connection between mediation, conciliation and legal proceedings, as not all mediators are legally trained and not all mediations occur in connection with litigation.
  • Mediation is not incidental to the exercise of judicial power.

3. Judges are not qualified to act as mediators

  • Mediation is a craft that requires specific education and training, as well as accreditation and ongoing professional development.
  • Eminence, judicial ability and legal knowledge and experience do not necessarily equip Judges to act as a mediator.
  • Judicial Registrars of the Federal Circuit Court are trained and accredited mediators.
  • There are thousands of appropriately qualified and accredited mediators who could conduct private mediation at an affordable cost.
  • It is inappropriate to appoint a Judge to mediate a case merely to access the authority of the Judge to induce or extract a settlement.
  • Judges should give exclusive primacy to their judicial role rather than acting as a mediator in cases before the Court.
  • Judges have busy dockets and it is unjustifiable to take time out of the activity of judging in order to act as a mediator.
  • Judges should not risk being called as witnesses about what happened in private mediations.
  • If a Judge acting as a mediator gave an evaluation of the legal case, and a Judge acting as a Judge subsequently decided differently, the standing of Courts and Judges would be diminished.

Comment

This judgment provides some very interesting insights about court-connected dispute resolution practice. Dowdy J has lived experience as a senior legal practitioner with many years’ participation in court-connected mediation and some of his reasoning is based upon that personal knowledge. In paragraph [32] quoted above,  His Honour claimed that mediating parties, particularly weaker or more vulnerable parties, invariably expect the mediator to express views about both the likely outcome of litigation and whether or not a proposed settlement is reasonable. His Honour continued:

[33] It so happens that, in the course of my practice as Counsel over the 25 years prior to my appointment to this Court I appeared at well over 125 mediations, regularly before the pioneers of mediation in Australia, being Sir Laurence Street QC and Mr Trevor Morning QC. In my experience virtually all mediators are prepared at a mediation over which they preside to advise in general terms, both on the parties’ respective prospects of success in any litigation and the reasonableness of the proposed settlement terms. Some very few mediators may decline to give their views on prospects of success, but I have never known or heard of a mediator failing to give, either expressly or at the very least impliedly, his or her approval and approbation to the settlement which successfully concludes the relevant mediation.

His Honour returned to his strong view about what litigating parties expect from a mediator:

[55]…by not evaluating the parties’ prospects of success I would have denied to them a characteristic function expected of mediators (see [32] and [33] above) which would be provided by Judicial Registrars and private mediators.

The mediations described fall far outside the concept of facilitative mediation. If evaluation is a “characteristic function” of court-connected mediation, then this should be acknowledged properly and taken into more serious consideration in training and accreditation processes. The question of whether or not litigating parties expect this style of mediation (a) because it is what they have experienced before, or (b) because it is their preference over other styles, is also worthy of interrogation. Should facilitative mediators market their services from a point of difference, instead of assuming that facilitation is understood by prospective clients as the “standard” form of mediation?

The equating of mediation with conciliation in the judgment was the means by which His Honour located the mediation function within the Constitutional powers. The definition of mediation is hotly disputed within the dispute resolution community (as is whether Dispute Resolution is preferable to Alternative Dispute Resolution). However, this judgment raises again the question of whether or not court-connected dispute resolution of the character described and expected should more appropriately be called “conciliation”, in order for it to be distinguished from other kinds of dispute resolution practice.

There is great potential for the private mediation sector to provide affordable dispute resolution services to litigants. Judge Dowdy identified many problems with using Judges to mediate, when there is a surplus of appropriately qualified and accredited practitioners available to assist parties navigate a path to settlement. What creative ways can the mediation profession use to attract the respect and legitimacy that parties are seeking when they prefer senior legal minds to act as mediators of their disputes?

*Note: The decision specifically relates to Judges who exercise the judicial power of the Commonwealth of Australia. The Commonwealth Constitution mandates separation of judicial power and the Commonwealth legislature cannot confer non-judicial functions on Judges except those that are incidental to their judicial function (see Boilermaker‘s case). The situation is different in state jurisdictions (see Kable and Momcilovic cases).

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This entry was posted in Dispute resolution by Dr Olivia Rundle. Bookmark the permalink.

About Dr Olivia Rundle

Dr Rundle is a senior lecturer at the Faculty of Law, University of Tasmania. She has worked as a nationally accredited mediator and a Family Dispute Resolution Practitioner. Dr Rundle is especially interested in the role of lawyers in dispute resolution processes and the policy environment that positively encourages lawyers to engage with dispute resolution. She teaches and researches in broad areas of Dispute Resolution, Civil Procedure and Family Law.

14 thoughts on “Can Judges Mediate? CASE NOTE: Wardman v Macquarie Bank

  1. Interesting post Olivia. Thankyou.
    Your post highlights some important considerations. ‘Conciliation’ is conciliation and a good/useful process in some cases. ‘Mediation’ is Mediation and a good/useful process also. It is wonderful to have a range of processes across the DR spectrum to offer. I think it is important that we don’t confuse the two distinct processes in our own minds although they may appear to sometimes fall under a ‘mediation’ banner by legislators or practitioners.
    Identifying the appropriate process for the needs and expectations of the parties is key to commencing an appropriate process.

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  2. Thank you for the prompt case note, Olivia. Clarity about the concepts is important for those drafting dispute resolution clauses as well as for advisers to parties being offered court-connected ‘mediation’.

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  3. Thanks for the timely post Olivia – very interesting observations about the desire of parties for an evaluation of their prospects. I completely agree with your point “The mediations described fall far outside the concept of facilitative mediation. If evaluation is a “characteristic function” of court-connected mediation, then this should be acknowledged properly and taken into more serious consideration in training and accreditation processes.”

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  4. What are the implications for Judge-Arbitrators? The learned Judge’s references to arbitration may be obiter but, at least in the Australian context, they seem strong (to a layman).

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    • Fundamentally, (and importantly), Judge Dowdy eloquently observes the difficulties at, but not necessarily confined to, a Federal level, of Judges “mediating”.

      By reference to the excellent work of Boulle and Field as to the validity of consent, neutrality and impartiality and voluntariness as concepts inherent to mediation, Judge Dowdy identifies a number of problems with the concept of judicial mediation.

      Whilst some Judges have a pre appointment history of mediation training and practice, this background is far from universal. Further, those skills, whilst of assistance in many ways in a judicial role (e.g active listening, reframing) are not practiced on a daily basis. To suggest that “anyone” can mediate is demeaning to those who possess significant skills and experience in mediation. Such a statement debases and dismisses those skills.

      It is difficult to perceive a judicial officer as “impartial” with respect to the subject matter of litigation before them, unconsciously, affecting any perception of neutrality in seeking to assist parties in negotiation. Further, any “judicial indication” given as part of an evaluative mediation (and evaluation is not inherent to or is, perhaps, contrary to most models of mediation) would have the potential to cause some concern to the parties or those representing them. Voluntariness is also a problematic concept when proceedings are before the Court and such discussion occurs within that environment. Certainly, if one considers voluntariness, it is difficult to give that term real meaning when proceedings are already before the Court and the proposed mediator IS the Court. Confidentiality cannot occur, as Judge Dowdy points out, as confidentiality is contrary to any notion of the open discharge of judicial function. Parties cannot “contract out” or authorise the Court to act outside of judicial function.

      Judge Dowdy poses two questions: Can judges mediate and should judges mediate. The answer to the first question being no then perhaps this obviates against the need to answer the second. But, if the second question were answered then the answer would also be no. The Court is the judicial branch of executive government involved in the public and open determination of controversy. It is simply not the role of judges to mediate (leaving aside the above matters, which would affect whether what a judge is, in fact, doing could be called mediation). Not only is Judge Dowdy’s point well made, that mediation is outside of the definition of judicial function, but judges have no time to do so and should not do so when there is a large body of well qualified mediators to do that work outside of the Court without the attendant problems of judicial venturing into this field.

      As regards a judge “arbitrating” the issue is, perhaps, more nuanced. On one view, judges arbitrate disputes. However, terminology is important (as other comments have highlighted). Judges and arbitrators both “determine” disputes. However, judges judicial determine controversy as discussed by Judge Dowdy. The authority of Judges (again as discussed by Boulle and Field) arises, in a functioning democracy, from the submission of the citizenry to be governed (Courts being the judicial branch of executive government). Whilst arbitration is sometimes referred to as “private judging”, it is not. Arbitration is a non-judicial determination of a dispute and is not “judging”. An arbitrator’s authority is derived from the contractually submission of the parties to be bound by the arbitrator’s determination. This is why an arbitral award can only be enforced by discretionary exercise of judicial authority.

      An arbitrator does not exercise judicial authority. An arbitrator, for example, does not create binding precedent, is not bound by common law conventions as to process, procedure (for example the process is generally private and confidential as opposed to open and transparent) and, to some extent, is not bound by application of rules of evidence. The arbitral process is malleable and can be agreed, as a matter of contract, between the parties whereas judicial process is fixed.

      Again an excellent piece as demonstrated by the number of comments.

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      • Thanks for your comment Joe, some interesting thoughts about the arbitration role of judges.

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  5. Valuable commentary, thank you, Olivia – demonstrated by the range of comments: His Honour’s Reasons for Judgement have something for everyone. For example, in the midst of its own review of conciliation in Australia, ADRAC can face-palm at para 16 [‘Mediation is a synonym for conciliation …’]. The MSB can face-palm at para 49 [‘Whilst there is not necessarily any correlation between formal training and accreditation and competence as a mediator …’]

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  6. Thanks for this interesting case note. Judicial dispute resolution, including mediation, is alive and well in Canada. The key issues raised in the Wardman decision were answered quite differently by the Alberta Court of Appeal in J W Abernethy Management & Consulting Ltd v 705589 Alberta Ltd and Trillium Homes Ltd, 2005 ABCA 103 (http://canlii.ca/t/1k40k) which also addressed issues of judicial evaluation in White v White, 2003 ABCA 358 (http://canlii.ca/t/1g1qq). I have surveyed the current practice of JDR in Canada in an article: “”Judicial Dispute Resolution in Canada: Towards Accessible Dispute Resolution”, Windsor Yearbook of Access to Justice, Vol 35, pp. 433-462 (2018) (available at: https://wyaj.uwindsor.ca/index.php/wyaj/article/view/5789). My view is that judicial and private dispute resolution can co-exist by responding to different client needs as I argued in a presentation at the recent National Mediation Conference (available here: http://www3.telus.net/zariski/Judges%20as%20Dispute%20Resolvers.pdf). Archie

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  7. Some great and learned threads above. I think the judgment is a wise one, and provides some good breadth on the topic – a pity it won’t go to the NSWCA, as did the Ichor case on arbitration/mediation.
    I’m a little surprised it’s taken so long for jurisprudence to develop on the topic. Iain Field, then at Bond Uni, wrote an excellent PhD on the subject quite some time ago, part of which appeared in the ADRJ. It’s long overdue for judges to begin commenting on the separation of powers, Ch III, competence and discretion issues so well raised by Dowdy J.

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  8. Thanks Olivia for your wonderful case note, which as already noted by others has prompted genuine observations and thoughtful analysis in the comments. I find it a stretch to equate mediation with conciliation when searching for a constitutional head of power to anchor the process (or collection of processes) we call mediation. It is worthwhile noting that the conciliation and arbitration power under section 51 (xxxv) of The Constitution reads “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.” In short, mediation was not a feature of our legal system or our culture more generally in 1901 when the Australian Constitution was framed, agreed upon and enacted.

    I also raise the question ”how often in the law do we find that something that was once regarded as immutable, according to law, is capable of change?” Two examples from the family law jurisdiction over the last 20 years are:
    (1) the introduction of the single expert regime under Part 15 of the Family Law Rules, 2004. This was a significant change that made the appointment of a single, Court expert the norm in most cases, and virtually ended the practice of what John Wade described as ”duelling experts.” At the time, the Law Council of Australia was critical of the proposed reform arguing that it is a fundamental right of litigants in an adversarial system to select their own expert and contending that the proposed rule may be ultra vires on constitutional grounds. The Judges passed the draft Rules and the legal profession quickly adapted to the new regime.

    (2) amendments to the Family Law Act giving Judges the power to order parties to attend and participate in post-order parenting programs. Notwithstanding Lionel Murphy’s vision for the Family Court of Australia as ”the helping Court”, when the Court started in 1976, the function of Judges was to make orders in relation to guardianship, custody and access in ”children’s cases.” Court Counsellors could be accessed by prospective litigants within the Court building and Registrars and Judges could order parties to attend confidential counselling and ”reportable counselling” during the course of a case with those Court Counsellors.

    The powers of the Judges to make orders in parenting cases that extended beyond the date of the Court’s involvement with a family, by the utilisation of community based ”relationship services” was not conceived until the period between 2000 and 2003. This particular proposal, described as ”post order support” in the landmark discussion paper titled ”Every picture tells a story” published by the House of Representatives Standing Committee on Family and Community Affairs, December, 2003, was questioned as being beyond the jurisdictional power prescribed by the Act. Again, this reform made its way into law without a challenge based on jurisdiction.

    I therefore ask “to what extent are our views and perceptions about Judges being able to convene ‘Judicial Settlement Conferences’ as part of the case-management play-book, culturally laden?” If we observe that the vast majority of civil cases settle without a Judge having to make final orders after a contested hearing, there is a good rationale for allowing those Judges who may wish to volunteer to undertake judicial mediation processes within Courts undertake that work if it is reasonably incidental or ancillary to their primary function of ”judging.”

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