Mediation

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Skivington & Skivington [2019] FamCAFC 36 (11 March 2019)

The husband pursued parenting and property orders and the wife filed a response to that application.

The judge made an order directing the parties to attend mediation and the matter was adjourned for further directions. There were several adjournments that took place some of which the court motioned other times the parties requested for more time to mediate.

The orders by consent instructed the parties they must attend mediation before the next mention date and for there to be no further adjournments, if the husband and wife failed to prosecute their claim, the matter would be dismissed on the next occasion.

During the interim stages, the parties resolved the parenting issues and had agreed to a method of valuing the property. The judge was informed the parties expect on completion of mediation for the matter to be resolved.

The matter was adjourned again in chambers at the parties’ request because the expected mediation had not occurred. The matter returned before the judge where the parties again requested more time to complete the mediation process.

The Judge dismissed both the initiating application and response on the basis that the parties had failed to prosecute the matter.

The wife appealed those orders, and claims the orders were complied with and that both parties were attending the mediation process, however the mediation process was incomplete, due to the mediator’s other commitments. The husband also conceded the judges orders were erroneous.

FACTS SUMMARY:

  • The husband pursued parenting and property orders and the wife filed a response to that application.
  • Orders by consent instructed the parties that they must attend mediation before the next mention date and for there to be no further adjournments.
  • The judge was informed the parties expect on completion of mediation the matter to be resolved.
  • The parties again requested more time to complete the mediation process.
  • The mediation process was incomplete, due to the mediator’s other commitments
  • The Federal Circuit Court Judge dismissed the parties' initiating application and response for failure to prosecute the matter.
  • The wife is appealing; the husband concedes the orders were erroneous.

ISSUE:

Did the judge fail to comply with the requirements of Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth)?

HELD:

The appeal against the orders were allowed.The initiating application and response are remitted to the FCC for a rehearing with a different Judge. The court grants both parties a costs certificate.

In determining this matter Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth) provides:

13.12 Dormant proceedings (1) If a party has not taken a step in a proceeding for 6 months, the Court may, on its own initiative, order that the proceeding, or a part of the proceeding, be dismissed. 

(2) The Court must not make an order under subrule (1) if: 

(a) there is a future listing for the proceeding or a part of the proceeding; or 

(b) an application in a case relating to the proceeding has not been determined; or 

(c) a party to the proceeding satisfies the Court that the proceeding, or part of the proceeding, should not be dismissed; or 

(d) the Court has not given the parties to the proceeding notice under subrule (3). 

(3) The Court must, at least 14 days before making the order, give each party to the proceeding written notice of the date and time when it will consider whether to make the order. 

(4) Notice under subrule (3) must be sent by post in an envelope marked with the Court's return address: 

(a) to each party's address for service; and 

(b) if a party has no address for service--to the party's last-known address. 

It was established the matter was not “dormant” for the parties had attended mediation in accordance with the order, although the mediation was incomplete, due to the mediator’s other commitments. Whilst the process may have been slow going it was still in motion, the parties had therefore “taken steps to advance the proceedings.”

Furthermore, the judge stated at [10] “no evidence was tendered or relied upon on the adjournment application to explain why orders had not been complied with” contrary to this, a transcript extract from the submissions made on the adjournment application at [1] was included in the judges reasons.

It was determined the judge had erred in failing to consider the actions of the parties that demonstrated they were in fact prosecuting the proceedings. The judge did not clarify why the partial settlement and the incomplete mediation process were inadequate to avoid the proceedings being rejected. 

 

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What is Islamic dispute resolution and why is it controversial in Australia?

February 7, 2019

Islamic dispute resolution involves resolving disputes without going to court and is similar to alternative dispute resolution, or ADR.

But Islamic dispute resolution has been controversial. Australia’s Muslim community is divided on whether it should be used here, its potential risks and benefits, and how it would sit with Australian law.

Why would an established form of mediation be so controversial? And what are the issues with implementing it in Australia?

Remind me again, what is dispute resolution?

The form of dispute resolution typically used in Australia, ADR, usually involves an independent third party helping parties to resolve matters without involving courts. Alternatively, it may involve negotiation between parties and their lawyers without a third party.

It’s encouraged because it is an efficient method of resolving disputes. Parties can save money and time and reduce the stress involved with court proceedings. It’s often referred to as appropriate dispute resolution.

ADR traditionally consists of negotiation, mediation, conciliation and arbitration. In both domestic and international arbitration, the final decision is binding. Negotiation, conciliation and mediation result in non-binding decisions.

In the field of international commercial arbitration, only commercial matters between international parties can be the subject of arbitration, as opposed to family, criminal or civil matters.

What about Islamic law?

Similarly, Islamic law encourages disputes to be resolved outside court through tahkim(arbitration) or sulh (mediation). The dispute resolution processes in Islam are part of a larger Islamic legal framework, known as Islamic law or Shariah.

There are two main primary sources of Islamic law. The first is the Quran, which is the holy book for Muslims. The second is the hadith, which are written collections recording the actions and sayings of the Prophet Muhammad (Sunna). Islamic law is also divided into different schools of jurisprudence and varying interpretations.

International commercial arbitration can also be subject to Islamic law. The Asian International Arbitration Centre has developed i-Arbitration rules (“i” signifies compliance with Islamic law). This caters for international parties who are interested in resolving their disputes through Islamic procedures.

For example, an arbitrator may choose not to include interest (riba) when determining a penalty in international commercial arbitration subject to Islamic principles. Although Islamic law encourages trade and profit, it prohibits riba. This prohibition is mentioned both in the Quran and the hadith and is considered an unethical and excessive gain.

The i-Arbitration rules are also consistent with the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules.

What are the objections?

In 2009, Australia’s Muslim community was divided on the issue of establishing Islamic dispute resolution tribunals. One board member of the Islamic Council of Victoria supported and advocated the idea. But the Islamic Council of Victoria, as an organisation, opposed it.

The council was afraid that misconceptions about the term “Shariah” would trigger an unhealthy debate. Another concern raised by a representative of the Islamic Women’s Welfare Council of Victoria was that certain patriarchal interpretations of Islamic principles could place women at a disadvantage.

For example, reports from the UK suggest that there have been cases where male mediators have made it more difficult for women to obtain a divorce because they believe it should be the last resort. Also, some mediators were unaware of issues such as domestic violence and other structural injustices impacting women.

This issue was again highlighted in the media in 2011 when the Australia Federation of Islamic Councils made a submission to the federal parliament’s Committee on Multicultural Affairs calling for a recognition of certain aspects of Islamic law.

In response, the then federal attorney-general, Robert McClelland, very clearly respondedthat there was no place for Islamic law in Australia.

How might it work with Australian law?

However, the proposal for implementing Islamic dispute resolution and the criticisms in relation to women being at a disadvantage were not thoroughly investigated.

There was no clear empirical research about whether women’s rights would be infringed in Australia if it was implemented.

It was also unclear how Islamic dispute resolution would operate. Would it function separately from or with Australian law? And would it be part of traditional ADR or separate from it? If it did form part of traditional ADR, would mediators and arbitrators be required to go through professional training and accreditation?

What can we learn from the UK?

Muslim Arbitral Tribunals operate in the UK and are subject to the law of England and Wales; they do not operate as a parallel legal system. They determine commercial, civil, family and personal law matters.

Although the tribunal may arbitrate on commercial matters, the decision can only be enforced in court if it meets legal requirements under the law of England and Wales. The tribunal can also mediate family law disputes about children and domestic violence, but such decisions are not binding.

In 2018, an independent review of these tribunals was presented to parliament. It recommended Muslim tribunals could provide women with more agency by addressing their concerns and involving them in dispute resolution procedures. Other recommendations included involving professional mediators who are aware of matters such as the rights of women to divorce, and ensuring mediators are professionals who are trained, accredited and educated about women’s rights.

 

Researchers from the universities of Sydney and Melbourne are exploring the experiences of women, men and mediators who have used informal community processes to resolve family disputes. The Australian Research Council is funding the project. It will shed light on whether Islamic dispute resolution processes will cater for issues such as domestic violence and the rights of women to divorce.

If the research suggests Islamic dispute resolution can operate in harmony with Australian law and provide women with agency, there is no reason why ADR should not cater for Muslims. If the operation of Muslim tribunals proves to conflict with Australian law and harm women, Muslim tribunals should not be established.

Regardless of the outcomes and recommendations, it is important that such discussions do not form part of a racist and Islamophobic narrative. Rather, Islamic dispute resolution should be further explored with the aim of empowering women and accommodating religious diversity.

Theconversation.com

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No. 1 of 2019 - Judicial mediations in family law matters

Preliminary

  1. This Practice Direction sets out arrangements for the conduct of Judicial Mediations in the family law jurisdiction of the Federal Circuit Court of Australia (“the Court”).
  2. The Court is committed to the resolution of disputes in the most efficient manner possible and in particular with the assistance of private mediations, where appropriate.
  3. Judicial is not intended to be a substitute for private mediation conducted by appropriately qualified mediators, but may be an option for appropriate matters. It is expected that practitioners and parties will exhaust all mediation alternatives, prior to judicial mediation.
  4. The purpose of the practice direction is to set out guidelines for:
    1. Criteria for suitability;
    2. Referral by Judge;
    3. Application by parties;
    4. Preparation;
    5. Attendance;
    6. Conduct;
    7. Confidentiality.
  5. This practice direction commences on 1 January 2019.

Criteria for suitability for Judicial Mediation

  1. Matters suitable for Judicial Mediation include the following:
    • Both parties are legally represented;
    • Where one or both parties are self-represented and the docket Judge determines the matter is suitable for judicial mediation;
    • Property disputes;
    • Parenting disputes where there is no  allegation of  serious risk and/or family violence;
    • Appropriate child support matters;
    • Compliance with orders for a prior unsuccessful private mediation;
    • A risk that the costs and time of the trial will be disproportionate to the subject matter of the dispute;
    • Any other matters identified as suitable, by the docket Judge.

Application by parties for Judicial Mediation

  1. A party seeking a Judicial Mediation, subject to notification of all other parties to the proceeding, may make an oral application in Court for a mediation or apply in writing to the Docket Judge in Chambers.
  2. Any application in writing must be supported by a brief summary, in bullet point format, addressing why the matter is suitable for Judicial Mediation.
  3. Within 14 days of receipt of an application for Judicial Mediation by another party to the proceeding, a party must:
    • If consenting to Judicial Mediation, forward to the chambers of the Docket Judge a consent to the mediation.
    • If opposing Judicial Mediation, forward to the chambers of the Docket Judge, a brief summary in bullet point format, addressing why the matter is not suitable for Judicial Mediation.
  4. If the parties consent, the application for Judicial Mediation will be determined on the papers, thereby avoiding the need for an oral hearing of the application.

Judicial Mediator

  1. The Judicial Mediator may not be the docket Judge.

    11.1 Where both Judges consent, the docket Judge may refer any suitable proceeding in her or his docket for Judicial Mediation by another Judge.

Preparation for Judicial Mediation

  1. The docket Judge will make relevant procedural orders for the Judicial Mediation.
  2. In addition to any matter addressed in specific orders of the docket Judge, the following preparation will be required to be completed prior to Judicial Mediation.

    13.1 Property disputes:

    • A list of all relevant applications, responses, affidavits and financial statements filed in the proceeding;
    • A balance sheet of agreed and disputed assets and liabilities;
    • A Case Summary addressing s.79/s.90SM contributions and s.75(2)/s.90SF(2) needs;
    • An indexed and paginated Court Book of copies of all relevant discovered or subpoenaed documents;
    • Copies of any valuations of any asset, financial resource or superannuation interest which are in dispute;
    • Written confirmation that a superannuation trustee has been accorded procedural fairness, if a superannuation splitting order is sought;
    • A draft minute of proposed orders.

    13.2 Parenting disputes

    • A list of all relevant applications, responses, affidavits and financial statements filed in the proceeding;
    • A Case Summary addressing relevant s.60CC factors;
    • Copies of all family reports, s.11F Memorandum, psychiatric and risk assessments, if not previously filed with/available to the Court;
    • An indexed and paginated Court Book of copies of all relevant discovered or subpoenaed documents;
    • A draft minute of proposed orders;
    • Copies of any intervention orders currently in place.

Attendance at Judicial Mediation

  1. All parties and their legal representatives must personally attend the Judicial Mediation. Participation via video link or telephone will only be permitted in exceptional circumstances.
  2. The legal representatives must have full authority of the parties to settle the proceeding.

Conduct of Judicial Mediation

  1. Mediation styles and practices will differ between Judicial Mediators.
  2. The Judicial Mediator shall not, without the express approval of all parties to the mediation:
    • Meet individually with a party and relevant legal representatives;
    • Disclose information provided to a party in a separate session to the other party.
  3. Subject to the preceding paragraphs, the conduct of the Judicial Mediation shall be entirely at the discretion of the Judicial Mediator.

Confidentiality

  1. Parties and their legal representatives must protect the confidentiality of the mediation and are referred to s.131 of the Evidence Act 1995 (Cth).
  2. The Judge conducting the Judicial Mediation will return to the parties or destroy all material provided to the Judge or the Court, whilst preparing for or conducting the Judicial Mediation.

Listing for trial subsequent to Judicial Mediation

  1. No Judge of the Court will hear and determine any matter in which the Judge has acted as Mediator, or where the Judge has become aware of any confidential information pertaining to the dispute between the parties.
  2. If a proceeding fails to resolve at a Judicial Mediation, the matter will be referred to the docket Judge for further directions, if required, and trial.

 

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