Court Connected Mediation: New model at the Victorian Civil and Administrative Tribunal

When it comes to court connected mediation (CCM) it is useful to make a differentiate between the process which takes place in the room and the process which takes place outside of the mediation room. Many CCM programs will arguably use NMAS as the foundation of what happens in the mediation room. However, they will all have different out of the room process. These out of the room process add to the context and environment that the inside the room process takes place and has the potential to have an impact. It is within in this frame of reference that I would like to introduce and discuss a relatively new model of mediation known as Fast Track Mediation and Hearing (FTMH) and focus the discussion on the out of room process and environment FTMH takes place in and how they may impact the mediation, parties and mediator.

Background

The FTMH program was developed in response to a recommendation in the Access to Justice Review. [LINK] The FTMH is a partnership between the Victorian Civil and Administrative Tribunal (VCAT) and the Dispute Settlement Centre of Victoria. The program started in September 2017 with a staged roll out over four years. As of March 2020, will be offered in eight locations across Victoria with the VCAT on King St in the CBD the main location.

Jurisdiction

The program will meditate goods and services disputes that have a value of between $500 and $10,000.

Objective

To resolve and if not finalise disputes as quickly as possible.

Process

Appropriate disputes are identified and staff of the FTMH program will contact the parties. An intake will take place over the phone where the process will be discussed, and parties will be provided with information to allow them to be best prepared for the day where the matter will be resolved or finalised.

On the day, parties will arrive at VCAT and will go through a one-hour mediation. The in the room process is a NMAS based facilitative model. If the mediation results in an agreement, then terms of settlement are drafted and signed and the VCAT file is updated accordingly. If there is no agreement, then the parties are taken directly to the tribunal and their matter is heard by a VCAT Member who will make a determination. From the parties’ perspective they will leave VCAT with either an agreement reached in mediation or a determination from a VCAT member.

Unique Features and Impact

The FTMH program has a number of unique features which impact the mediation, parties and mediator including:

Front loading of time and costs: given that the parties will be going into a hearing and have the matter determined on the same day as the unsuccessful mediation, means that any costs will have already been spent prior to the mediation and there will be no further costs incurred to take the matter from mediation to a hearing. The same is the case for time. There will be no further time delay from mediation to a hearing.

Costs orders: VCAT is a generally a no costs jurisdiction. Which means that one of the key risks in matters of low value does not exist. Parties are not incentivised or at least they are less incentivised to settle as they do not risk having to pay the other parties legal costs if the hearing does not go their way.

Final agreement opportunity: The mediation in FTMH is the final opportunity for parties to resolve the dispute. They can not use the mediation as a fact-finding exercise or opportunity to test or hear the other parties offers. As there is no opportunity to continue negotiating if the mediation is not successful as the matter goes directly to a hearing and will be determined

Conclusion

This an exciting program that really addresses a need for disputing parties. It gives them the opportunity to try to resolve the dispute themselves but at the same time ensures that the dispute will be finalised on the one day allowing greater access to justice for disputing Victorians.

Much of the attractiveness of resolving disputes in CCM is the saving of time and money and mitigating costs orders. FTMH removes the delay and added costs generally associated with non-resolution of CCM. This has a potential impact on the incentives for parties to settle. It also limits the BATNA, WATNA and reality testing tools mediator would otherwise have in their tool kit. In time, I hope to do a research project to see what the actual impact the unique features have on the outcome and party satisfaction.

It is great to see continued innovation in the CCM space and it will interesting to see how this program develops.

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