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Assisted dispute resolution

Assisted dispute resolution (ADR) is an important part of the efficient resolution of litigation in the Court context, with cases now almost routinely referred to some form of ADR. In addition to providing a forum for potential settlement, mediation is an integral part of the Court’s case management.

In recognition of the Court’s unique model of mediation and commitment to a quality professional development program, the Court became a Recognised Mediator Accreditation Body in September 2015 and implemented the Federal Court Mediator Accreditation Scheme (FCMAS). The FCMAS incorporates the National Mediator Accreditation Standards and the majority of court-ordered mediations are conducted by registrars who are trained and accredited by the Court under the FCMAS.

In the native title jurisdiction, while native title registrars now conduct most mediations of native title matters, the Court maintains a list on its website of appropriately qualified professionals if there is a need to engage an external mediator or co-facilitate mediation.

Since the 2010–11 reporting period, the Court has maintained comprehensive statistical information about referrals to ADR and the outcomes of ADR processes held during the relevant reporting period. Mediation referrals are summarised in Table 3.5. As in previous years, the data should be considered in light of various factors. Firstly, referrals to mediation or other types of ADR may occur in a different reporting period to the conduct of that mediation or ADR process. Secondly, not all referrals to mediation or the conduct of mediation occur in the same reporting period as a matter was filed. This means that comparisons of mediation referrals or mediations conducted as a proportion of the number of matters filed in the Court during the reporting period are indicative only. Thirdly, the data presented on referrals to ADR during the reporting period does not include information about ADR processes that may have been engaged in by parties before the matter is filed in the Court, or where a private mediator is used during the course of the litigation. Similarly, the statistics provided in Table 3.5 do not include instances where judges of the Court order experts to confer with each other to identify areas where their opinions are in agreement and disagreement without the supervision of a Registrar.

On 17 March 2020, in response to the COVID-19 pandemic, the Chief Justice determined that all listings, including mediations, be conducted by remote access technology. In the three month period since 1 April 2020, the Court has conducted 156 mediations: 86 by video conference and 70 by telephone.

During the reporting period, there was a 16 per cent reduction in the number of matters referred to mediation compared with the 2018–19 reporting period, although referrals by matter type is broadly consistent with past years.

A collection of statistics concerning the workload of the Court by NPA is contained in Appendix 5: Workload statistics.

Table 3.5: Mediation referrals in 2019–20 by NPA and registry

NPA

NSW

VIC

QLD

WA

SA

NT

TAS

ACT

TOTAL

Administrative and constitutional law and human rights

4

20

8

3

1

0

1

0

37

Admiralty and maritime

6

0

0

0

0

0

0

0

6

Commercial and corporations

62

82

18

14

7

1

2

5

191

Employment and industrial relations

32

61

12

13

3

0

3

4

128

Federal crime and related proceedings

0

0

0

0

0

0

0

0

0

Intellectual property

23

28

11

4

0

0

0

0

66

Migration

0

2

0

0

0

0

0

0

2

Native title

4

2

6

5

0

0

0

0

17

Other federal jurisdiction

16

5

4

2

1

2

1

1

32

Taxation

0

2

1

0

0

0

0

0

3

Total

147

202

60

41

12

3

7

10

482