Originally from World Arbitration and Mediation Review

Worldwide Perspectives on Mediation
Mandatory Mediation in Australia
by
David Spencer∗ and Nadja Alexander+
Introduction
In last month’s column, a précis was given of the Australian legal
system and the statutory mediation schemes in place in most of Australia’s
nine State and Federal jurisdictions. The column identified a number of
“hot potatoes” in Australian mediation law and practice. This month we
will deal with the first of those “hot potatoes,” that of mandatory
mediation.
When the formal process of mediation first arrived in Australia
about twenty or more years ago, it was under the aegis of privately
sponsored programs. For example, the Australian Commercial Disputes
Centre (ACDC) was established in Sydney in 1986 to facilitate the
introduction of dispute resolution services into Australia. Back then,
ACDC acted as consultants to industry and government, assisting them to
introduce dispute resolution services and train mediators to assist in the
provision of mediation services to anyone who required such services. In
addition, it case managed disputes by running the administration of
mediation, including the appointment of trained and accredited mediators.
Mediation in this “private sphere” was voluntary, of course. Parties,
generally through their lawyers, contacted ACDC with the view of setting
up a mediation to resolve the dispute that was, in most cases, before the
courts but had not reached trial or judgment. In the last ten years,
however, there has been a proliferation of court-annexed mandatory
mediation schemes through legislation.
In the States of New South Wales (NSW), Victoria, Queensland,
South Australia, Tasmania, and Western Australia, as well as the
Commonwealth of Australia (Commonwealth), courts can order
mandatory mediation if they consider the circumstances appropriate with
or without the consent of the parties to the proceedings. One argument in
Australia is that the imposition of mandatory mediation is a retrograde
step in the establishment of a culture of dispute resolution. In other words,
the cache of mediation is that the parties come to it voluntarily with a
willingness to reach a consensual outcome. A counter-argument is that the
voluntary nature of mediation has been so convincingly compromised over
the past decade by legislation in Australia that voluntariness now is no
longer a hallmark of mediation. Therefore, it does not really matter
whether mediation is mandatory or voluntary. This argument is based on
the view that a skilled mediator can assist parties whether they come to the