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CHAPTER 24 – OUT-OF-COURT SETTLEMENTS AND ALTERNATIVE DISPUTE RESOLUTION

24.1 INTRODUCTION

The primary focus of a Magistrate’s attention concerns what takes place within the courtroom, particularly at a hearing or trial. However, it is important for a Magistrate to be mindful of the things that may go on between parties out of court, and what alternatives the parties have to a contested trial. In this chapter we look at the ways in which disputes that are commenced in a District Court can be finalised without a contested hearing and decision by a Magistrate. We will look at what a Magistrate should be aware of and what duties exist in relation to cases where there has been a successful or unsuccessful attempt to settle out of court. This chapter is primarily concerned with non-criminal cases. Criminal cases that are resolved without a trial usually involve a guilty plea. Guilty pleas are dealt with separately in Chapter 12.

24.2 ADVANTAGES OF OUT-OF-COURT SETTLEMENT

It is generally preferable for parties (other than those lacking legal capacity) to voluntarily enter into a settlement that they consider to be fair, rather than to bring their dispute to court for a Magistrate to decide.

Out-of-court settlements are not only in the interests of the parties, but are also in the interests of the justice system and society generally. As long as they do not conflict with other duties or with a sense of fairness in the particular circumstances, out-of-court settlements should be encouraged. However, out-of-court settlements should never be imposed against the will of any party.

24.2.1 Advantages to the parties

Consensus

Settlements are in the interests of the parties because they represent a consensus. A court judgment does not represent a consensus. In most cases, the decision goes against the wishes of at least one party. Sometimes all parties are unhappy with the result.

Greater range of possible outcomes

Out-of-court settlements are in the interests of parties to disputes because they are flexible. Whereas a court is limited in the sorts of judgments that can be made, an out-of-court settlement has the potential to be creative in addressing the needs and interests of the parties. For instance, if a person is suing another person for damages resulting from injuries suffered in a fall at a store, the owner may settle by giving the injured party a discount of 20 per cent on everything that the injured party buys at the store for a year. No court could order this. In a customary setting, an out-of-court settlement might take the form of a feast with an exchange of pigs, money or other types of wealth, real or symbolic. There many other ways that parties may decide to be flexible in how they settle disputes out of court.

Speed

A further advantage to parties in settling matters out of court is that a settlement can be made long before a scheduled court hearing. Parties can proceed with their normal activities and be saved months of uncertainty about the outcome of their dispute.

Cost

Out-of-court settlements also represent a financial saving to parties in most cases, especially where a lawyer is involved. In the District Court, legal fees can soon mount up to the point where taking the case to trial is uneconomical for both parties, regardless of the outcome.

Finally, there is an emotional saving in cases that are settled out of court. Parties have a better chance of reconciling, and even carrying on a productive relationship, where they have been able to work out a mutually agreeable solution to their dispute. The potential for this is often damaged where a case goes to trial and a judgment is imposed on the parties.

24.2.2 Advantages to the court

If all of the cases commenced in the District Courts proceeded to contested hearings before Magistrates, the backlog of cases would grow longer as the system struggled to keep pace. Each year there are more and more claims commenced in the District Courts. The cost of providing courtrooms and Judges to handle the increasing number of disputes is a major expense for the country.

The more cases that settle out of court, the less pressure there is on the court system to provide adjudication services for the public. The earlier that cases settle out of court, the sooner the justice system is relieved of the need to manage those files. The files that do have to be resolved by way of a contested court hearing can therefore receive greater attention and time. It is, therefore, in the interests of the justice system for cases to be settled out of court.

24.2.3 Advantages to society

The more cases that are settled by parties out of court, the greater the number of disputes that are settled by the parties in a consensual manner. A dispute that is settled in a consensual manner is less likely to give rise to complications in the future. Business and commerce is less likely to be disrupted, and individuals are less likely to carry grudges against each other. In this way the overall interests of society are served.

24.3 NEGOTIATION – THE MOST COMMON MEANS OF RESOLVING CASES OUT OF COURT

If a dispute is resolved out of court, it is most likely that a process of negotiation led to the settlement. Negotiation is a process that is part of every culture and is something that everyone does on a daily basis. We negotiate with friends, spouses, parents and children.

Negotiation requires the voluntary participation of all parties. Negotiation is not a process that always leads to a successful outcome. Even after protracted negotiations are conducted in good faith, a settlement may not be possible. The services of a Judge or Magistrate are required to impose a resolution in these types of disputes.

The evidential notion of privilege attaches to negotiations that are conducted between parties with a view to settling a court dispute. After a failed negotiation, the substance of any admissions, offers and counter-offers that have been made between parties or their lawyers in an effort to negotiate a settlement, if led by one party as evidence, may be properly objected to by the other party.

24.4 WHAT IS ALTERNATIVE DISPUTE RESOLUTION?

Alternative Dispute Resolution, or “ADR” as it has become popularly known, refers to the various ways that disputes are resolved without recourse to a Judge. Negotiation, as has been mentioned, is the most common means of settling disputes out of court, but is only one of several forms of ADR.

ADR is an area of growing interest on the part of lawyers, Judges and others involved in justice systems around the world. This is especially true in jurisdictions that have relied heavily on the adversarial system as a means of settling disputes.

The word “alternative” in “alternative dispute resolution” is appropriate in jurisdictions where the adversarial system of justice has a long history. In Papua New Guinea, where the formal justice system was introduced relatively recently, it might be argued that litigation is itself the alternative, that is, alternative to the customary means of resolving disputes that preceded it. Nevertheless, the expression “alternative dispute resolution”, or “ADR”, has become widespread and accepted.

24.4.1 Negotiation

Negotiation is the most flexible form of ADR. Only the parties (and their lawyers if they are represented) are required. Whether or not negotiation takes place is up to the parties. The pace, process and outcome of negotiation is completely in the hands of the parties to a dispute (and their lawyers). It does not require the involvement of any third parties.

24.4.2 Mediation

Mediation is a process of negotiation where the parties make use of a third party to assist them. The third party is neutral and has no authority to impose a solution on the parties, or even to advise them. The parties themselves retain ultimate control over the process. A mediator’s job is to assist the parties to find their own solution. Like negotiation, mediation is a voluntary process that may or may not be successful in arriving at a settlement of the dispute. Mediators utilise specific skills to assist the parties in reaching a solution. We shall look more closely at mediation in 24.5.

24.4.3 Arbitration

Arbitration is an alternative method of dispute resolution that more closely resembles a contested hearing in court. Parties who agree to resolve their dispute by means of arbitration select a person or persons to hear both sides of the case. They agree in advance that they will be bound by the decision of the arbitrator and to the process that will govern the arbitration. The arbitrator or arbitrators manage the process in accordance with the rules that the parties agree to. The arbitration results in a finding by the arbitrator. An arbitrator performs an adjudicative role, much like that of a Judge.

The Arbitration Act provides some basic rules for the conduct of arbitration. Parties may agree to substitute some of their own rules, but they must do this by way of a written agreement. The Arbitration Act provides for the registration of arbitration decisions (sometimes called awards) as judgments of the National Court. Once registered, an arbitrator’s decision may be enforced as a decision of the National Court. Arbitrators may be selected by the parties on the basis of their expertise in the subject matter of a dispute. In this respect, arbitrators are different from Judges, who are expected to be competent in all types of disputes that are within their jurisdiction. In some jurisdictions lawyers and retired Judges frequently act as arbitrators.

In many jurisdictions, arbitration is commonly resorted to in disputes that arise in construction cases. The arbitrator in this type of case is often a person who is experienced in the construction industry and able to understand the nature of construction disputes. This reduces the need for the parties to call experts to give evidence about the issues in dispute.

Similarly, in many jurisdictions, arbitration has long been a common method of resolving business and labour disputes. In Papua New Guinea, the Papua New Guinea Dispute Resolution Center (PNGDRC) provides mediation and arbitration services for business, commercial and international disputes.

24.4.4 Other forms of ADR

Sometimes ADR processes are based on combinations of mediation and arbitration. Parties can agree to attempt to reach a mediated settlement but, if this is not successful, to have the mediator or some other person take the role of an arbitrator and impose a decision on the parties. This is one way for parties to have some certainty that they will finalise their dispute without it dragging on and resulting in a contested court hearing. The PNGDRC is able to work with parties to arrive at an ADR procedure that suits the circumstances of the parties and their dispute.

24.5 MORE ABOUT MEDIATION

Of all the methods of alternative dispute resolution, mediation is the one that Magistrates are most likely to be involved with. The Land Disputes Settlement Act involves Magistrates in the mediation process. This statute does not define mediation or set out a procedure by which it is to be exercised, yet Magistrates may be called upon to act as mediators. It is therefore important that Magistrates understand the fundamental nature of mediation and the skills that are required to be a good mediator.

The easiest way to understand mediation is to think of it as assisted negotiation. A mediator, who remains neutral, provides the assistance. A mediator utilises some skills that are different from those of a Judge or Magistrate.

24.5.1 Mediation differs from adjudication in several fundamental ways

Mediators don’t make judgments

One of the primary duties of a Magistrate is to make judgments, to communicate the judgments and to explain the reasons behind those judgments. A Magistrate who is acting as a mediator, on the other hand, is careful not to express judgment about the dispute in question. In some mediations, a mediator may make a suggestion about possible ways to resolve a dispute. However, care must be taken not to express suggestions in ways that reveal a judgment on the part of a mediator. A mediator remains neutral throughout the process of mediation.

Mediation is not a binding process unless the parties agree

Mediation is different from adjudication in that it is not binding on the parties. Parties who agree to mediation may or may not agree to a settlement of their dispute at the conclusion of the process. If the parties do reach an agreement, then they may proceed to express the agreement in the form of an oral or written contract or, in some cases, a consent order in court. Only then does the settlement become binding on the parties.

Mediation is less formal than adjudication

The process of mediation can be less formal than adjudication in court. Mediation, like negotiation, can take place at any location and at any time. Mediation is a means of dispute resolution that is frequently employed by Village Courts. These mediations often occur outdoors and sometimes involve groups of hundreds of people.

Mediation does not involve rigid rules of evidence or procedure. Even where lawyers represent parties, and the lawyers are present at a mediation, both the parties and the lawyers may speak informally and put forward evidence.

The role of a Judge is largely passive. It is up to the parties in court to define the issues, adduce evidence and make submissions. The parties, and lawyers for the parties, ask most of the questions in court. The rules of procedure and evidence govern when and how the questions are to be asked. Mediation is more flexible, and a mediator may enter into the process to a greater extent than a Magistrate normally does in court.

Mediators can meet with parties separately

In court, a Magistrate does not, except in exceptional circumstances, deal with the case in the absence of one of the parties. Ex parte applications are very much the exception. In mediation, on the other hand, a mediator routinely meets a party in the absence of the other party. This type of meeting is often referred to as a caucus. There are important guidelines that govern how a caucus is conducted.

24.5.2 What does mediation have in common with adjudication?

Rules of natural justice apply

The court process is based on the rules of natural justice, which in turn are based on a sense of fairness. A Judge or Magistrate must not have an interest in the matter in dispute. The same is true of a mediator. In both court hearings and mediation, it is important that both parties are treated equally, and that each party has an opportunity to give evidence and respond to the evidence and the arguments of the other party or parties. Mediation departs from the rules of natural justice in respect of separate meetings with a mediator. However, everything that a mediator does is done with the consent of the parties.

Parties may proceed with or without lawyers

In District Court hearings, the parties may or may not be represented by lawyers. Mediation can also be held whether or not the parties have a lawyer representing them. Even if the parties have had legal representation in the dispute in question, mediation may be held with or without the lawyer present, depending on the wishes of the parties.

The importance of listening skills

In order to impose a fair judgment in court, a Magistrate must be a careful listener. In addition to listening to the actual words that are spoken, a Magistrate must listen to how things are said, and sometimes must notice what is not said. This is important in order for a Magistrate to make findings of fact, especially where the credibility of a witness is an issue. Similarly, a mediator must also be a careful listener, although the reasons for this may vary from those that apply to Magistrates. A mediator must listen carefully to understand what interests underlie the position taken by a party, and what options might be acceptable to both parties. This type of listening is every bit as difficult as the listening that a Magistrate must engage in during a contested hearing. Both types of listening may be called “active listening”, because they require the active attention and simultaneous thinking on the part of the listener.

24.6 WHEN IS MEDIATION APPROPRIATE (OR INAPPROPRIATE)?

Unless both parties agree to mediation, it is unlikely that it will be successful. It takes both parties to bargain in good faith to make mediation successful. It is, therefore, inappropriate to conduct mediation if one or more of the parties are not in favour of the process.

Where a mediator is not able to act in a neutral fashion, or where one or more of the parties have a perception that the mediator is not able to act impartially, then it is not appropriate for mediation to take place, at least until a more suitable mediator can be found. Section 22C of the District Courts Act provides that a Magistrate who has acted as a mediator in a failed mediation cannot later act as a Magistrate at a contested hearing, unless both parties agree.

Where one of the parties is a victim of an assault, harassment or some other form of intimidation at the hands of the other party, it is unlikely that the first party will be able to negotiate on an equal footing with the other party. In such circumstances, a serious power balance exists, and mediation is inappropriate. For instance, where a husband has physically abused a wife, there is a good chance that she will be unable to bargain on an equal footing in the mediation process.

Where there is a risk of violence or offensive behaviour during mediation, it is best not to proceed. The dispute is better handled in the more rigid and adversarial framework of adjudication.

Mediation is not appropriate for criminal matters. The main reason for this is that a criminal offence, even where there is an identifiable victim, is primarily an offence against society. In some jurisdictions there are alternative methods of dealing with offenders, mostly in the sphere of sentencing. However, these are beyond the scope of this chapter: see Chapter 13.

Mediation can take place at any stage of a proceeding. This means that a civil case that has commenced in the form of a contested hearing may be adjourned in order to allow mediation to take place.

24.6.1 The scope of mediation

Mediation may be successful in resolving some but not all of the issues in a dispute. For example, where a person is claiming damages as a result of the negligence of another party, there will be at least two issues. One is whether the defendant was negligent, and the other is that of whether the claimant has suffered damages and, if so, how much.

Mediation may tackle several issues but be successful in resolving only one. On the other hand, a mediation may only attempt to deal with some of the outstanding issues.

24.7 THE STAGES OF MEDIATION

Although mediation is a flexible process, mediators have come to recognise that a basic structure or model is helpful in conducting a successful mediation.

Thinking of mediation as a series of stages helps a mediator and the parties move through a process that is directed at the desired result of a negotiated resolution of the dispute in question. There are several models that involve a sequence of steps or stages. They are all similar in many respects. The differences are in the details.

Each stage of the process has a purpose and follows the preceding stage to achieve a specific objective. Used together, they enable a mediator to assist the parties to reach a principled settlement of their dispute.

No process should be adhered to rigidly in all circumstances. The circumstances of a particular mediation may require the mediator to move the parties back to an earlier stage in the process to readdress an issue or introduce a new one. For instance, while parties are brainstorming to search for a set of mutual goals (stage IV), it might become apparent that they have insufficiently canvassed some of their interests, and the mediator must move the parties back to stage III. Likewise, a new sub-issue might be revealed that requires the parties to move back to stage II. At times, it may be necessary for a mediator to move back to stage I to remind parties of the ground rules of the process.

The following are the stages of a mediation set out in point form. While it is hoped that it will be useful to Magistrates who are called upon to mediate, the skills of mediation are best acquired through face-to-face instruction with repeated practice and critique.

24.7.1 Preliminary steps

·           The mediator should make sure that the parties know where and when to attend a mediation.

·           Prepare an appropriate site with comfort, privacy and a place to hold a caucus.

·           Ensure that parties are advised to bring all relevant documents.

·           If a mediation is being attended by a representative of a party (for instance, if a party is a corporation), the representative should be advised that he or she must come to the mediation with authority to represent the party and authority to negotiate and settle on behalf of the party.

24.7.2 Stage I – Introducing the process

·           Establish rapport and set a positive tone for the meeting.

·           The mediator should display qualities that are desired of the parties (candour, fairness, patience).

·           Describe the process, including the use of caucusing and the caucusing format.

·           Clarify the roles (participant’s and mediator’s).

·           Mediator’s role:

·           Stress the need for movement and get express commitment from the parties.

·           Verify time limits for the mediation (if any).

·           Clarify that each party or representative has authority to settle.

·           Address ground rules of the process:

24.7.3 Stage II – Identifying and framing the issues

·           Allow each party an opportunity to tell their story in their own words.

·           Summarise the issues and both sides’ perspectives.

·           Check out accuracy and seek clarification of facts and issues where needed.

·           Identify the areas of agreement.

·           Organise the information by separating issues and prioritising.

·           Establish, and get an agreement on, the agenda by framing the issues.

At this stage the parties should have agreement on the issues (questions) that have to be dealt with.

24.7.4 Stage III – Exploring and resolving the issues

·           Identify existing areas for potential movement by the parties.

·           Clarify and ensure understanding of any new information shared.

·           Identify assumptions and seek clarification.

·           Invite the parties to make proposals based on objective criteria.

·           Facilitate the exchange of information (using questions).

·           Emphasise existing and emerging areas of agreement.

·           Act as an agent of reality – help to dispel unrealistic expectations.

·           Identify areas of progress and areas where movement is needed.

·           Discourage parties from taking fixed positions, and encourage parties to discover common interests.

·           Set and maintain an appropriate pace of negotiation.

·           Break down larger issues into smaller ones.

·           Utilise caucusing whenever appropriate.

·           Stress the consequence of not reaching an agreement.

·           Manage personalities to maintain a rational and positive momentum.

·           Discourage “bottom lines” and ultimatums.

·           Challenge the parties to continue negotiating.

24.7.5 Stage IV – Finalising the settlement

·           Clarify each area of agreement and set it to one side.

·           Summarise and ensure understanding of each agreement reached.

·           Encourage the generation of additional options that will lead to agreement and closure.

·           Test options by objective criteria already established.

·           Provide a written memorandum of consensus to the extent needed.

·           Discourage ambiguity by ensuring the parties clarify details.

If a comprehensive agreement is not possible, see if a partial agreement can be reached: see 24.9.

24.7.6 The use of caucusing in mediation

In many mediations, it can be productive for a mediator to interrupt the joint session and to meet with the parties separately. A meeting where a mediator meets separately with a party is called a caucus. Caucusing allows a greater amount of informality between the mediator and the parties compared to what goes on in joint session. Whereas caucusing would be highly improper where a Magistrate is acting as a judge, it is not improper where the Magistrate has no power to impose a settlement.

A caucus can be called at any stage of mediation by the mediator or by either of the parties to the mediation. When a caucus is called, the mediator provides separate space where each of the parties can talk privately with the mediator.

There are a number of reasons for holding a caucus during mediation.

1.         Reality testing: The mediator may need an opportunity to discuss with a party how realistic or practical their expectations are. Doing this privately, instead of in front of the other party, allows the party to save face.

2.         Boundary testing: The mediator may wish to discuss with a party the need to be flexible and open to alternatives. Doing this in caucus also allows the party to save face.

3.         Exploration: Sometimes, a mediator is able to use caucusing to search for undisclosed facts or ideas. A mediator can also explore any personal issues between the parties that are withheld during joint session but sensed by the mediator.

4.         Dealing with emotions: Parties in joint session can become overly emotional, withdrawn or simply exhausted. A caucus allows a mediator to meet with a party to re-orient them to the process, and allow them to rest, cool off and refocus.

There are several factors that a mediator must be aware of in order to make use of caucusing effectively.

The effect on the trust level of the parties

A mediator must always be seen by the parties to be neutral. A mediator must therefore be careful, when talking to a party during a caucus, not to give the impression that he or she is taking sides. If the mediator takes sides with one party during caucus, then that party is likely to wonder what is going on behind his or her back when the mediator meets with the other party. This can create a greater level of distrust between the parties.

The use of confidentiality

A mediator must reach an understanding about confidentiality during a caucus. This should be done at the outset of the mediation. The most common agreement is that what is disclosed to a mediator during caucus is confidential unless the party disclosing it agrees to allow the mediator to disclose it to the other side. Agreeing that what is disclosed during a caucus is confidential can encourage the sharing of more information during a caucus. On the other hand, it can create difficulties for a mediator in sorting confidential information from non-confidential information when back in joint session. A skilled mediator will encourage a party to authorise the disclosure of important information to the other side.

Managing the time spent with parties in caucus

The mediator should be aware that the party who he or she is not meeting with is waiting, and probably wondering “What are they talking about in there, it seems like hours.” Therefore, a caucus should not last any longer than necessary.

Maintaining a balance in caucusing

A mediator should be careful to spend roughly equal amounts of time with each party in caucus. This balance helps maintain a feeling of impartiality and balance. Also, if there is more than one caucus in a mediation, it is a good idea to alternate the party who the mediator meets with first. This also helps to maintain a balance and a feeling of neutrality.

During a caucus, a mediator should try to generate an atmosphere of informality. It should feel like a “safer” environment for the parties to disclose information and concerns to the mediator. It is a good opportunity for a mediator to discuss with the party the best and worst alternatives to a negotiated agreement.

When going from a caucus back into a joint session, it is useful to positively reinforce the work done by the parties in caucus and to get any new (non-confidential) information “on the table” as soon as possible. Parties are usually anxious to know what was discussed in separate sessions.

24.7.7 Questioning in mediation

While a Magistrate acting as a judge must restrain himself or herself from becoming too involved in the process by asking questions, a mediator is free to ask questions of the parties. Questions should be non-confrontational. The skilful use of questioning is one of the most important tools that a mediator has. A mediator often uses “open questions”. Open questions cannot be answered by a simple yes or no. They give the party being questioned the freedom to shape the answer and include information that a yes or no question does not allow. Open questions are useful for getting parties to disclose interests behind the positions they take, to detect clues as to hidden agendas behind bargaining positions and to get clarity.

There are several types of open questions.

24.7.8 Reframing

A mediator is often confronted by negative or unhelpful statements by a party during a mediation.

When a mediator is confronted with these sorts of statements, the challenge is to recognise and state the underlying interest, and acknowledge that the party is seeking to have it met. Rewording the statement in a way that includes the underlying interest is known as reframing. It is most useful if, in reframing, a mediator can take some or all of the negativity out of the assertion.

Reframing is really a short process that invites the disputant to see, in a positive interest-based way, what will have to happen in order for them to contribute to agreement. To say reframing “names unmet needs” is to acknowledge the effect you can have in identifying building blocks of agreement.

Several steps can be required in reframing. This is an example:

Here is another shorter example of reframing that leaves out the explanation of the process.

24.8 THE DUTIES OF MAGISTRATES IN RELATION TO MEDIATION

24.8.1 Informing the parties about mediation

Many parties will not be aware of the Magistrate’s potential role as a mediator, or even what mediation is about. Therefore, if a Magistrate waits for parties to request mediation, very few mediations will take place. It is appropriate for a Magistrate to advise parties that the services of a Magistrate as a mediator are available where this is the case. This could be done prior to the hearing by means of a notice posted in the courthouse, or by means of a pamphlet that is handed out to parties when a claim or a dispute is filed. Courthouse personnel should be aware that District Court Magistrates have this role, so that they too can advise parties that mediation services are available. Even if a formally trained mediator is not available, it may be appropriate to suggest that parties attempt to settle their dispute with the help of a pastor, an elder or some other person who has the respect of both parties.

24.8.2 Decision to act as a mediator

The following factors are relevant to a Magistrate’s decision about whether or not to mediate in any given case.

Whether the parties wish to mediate

The parties can only make this decision once they are aware of what mediation is and that it is available. Unless the parties are willing to negotiate a settlement to their dispute in good faith, then it is probably a waste of time for a Magistrate to act as a mediator. On the other hand, where parties agree that mediation is a realistic means of settling their dispute, a Magistrate should make every effort to facilitate this.

Whether the resources of the court allow for mediation

It might be that there is only one Magistrate available. If that Magistrate acts as a mediator and the mediation is unsuccessful, then the Magistrate may be precluded from hearing the case as a contested hearing. It is only with the consent of the parties that a Magistrate can continue to act after an unsuccessful mediation. Parties who have already argued their case, and possibly disclosed their positions regarding settlement (evidence which is privileged in court), may be unwilling to allow the Magistrate to move from being a mediator to a judge.

Other factors are also relevant: see 24.6.

24.8.3 Changing roles

Whenever a Magistrate becomes a mediator, it must be made clear to the parties that the role of the Magistrate has changed. How the role has changed should be explained to the parties.

A Magistrate should also advise the parties that if the mediation is not successful, unless both parties consent, another Magistrate will have to preside at the hearing of the matter in court. Any delays that this is likely to cause to the parties should be explained.

Once these things have been explained, a Magistrate should re-confirm with the parties that they both wish to proceed with mediation.

The role of the Magistrate has changed, in that he or she will:

·           not impose a settlement;

·           not compel evidence;

·           hear evidence that might be inadmissible in a contested hearing;

·           not make a decision for the parties (It is up to the parties to reach their own decision); and

·           probably ask more questions than if acting as a judge.

The role of a Magistrate has not changed, in that he or she will:

·           listen carefully to the parties; and

·           ensure that the process of mediation is fair and that both parties have an equal opportunity to have their say.

24.8.4 District Courts Act

District Court Magistrates are authorised by statute to mediate civil disputes that are commenced in the District Court. Section 2B of the District Courts Act provides that a District Court Magistrate, or some other person approved by the Judicial Services Commission, may act as a mediator of a civil dispute that is brought in the District Court.

The objective of such a step in the proceedings is to reach an amicable settlement of the matter.

24.8.5 When should a District Court Magistrate mediate?

The District Courts Act provides for a great deal of flexibility regarding the timing of mediation. Section 22B says that mediation can take place at any stage of a proceeding up to the conclusion of the hearing. We have seen that the advantages of a settlement are generally greater when they occur earlier in the proceedings. It is therefore preferable that mediation in the District Court takes place as early in the proceedings as practicable. However, in most District Court proceedings there are factors that often delay the prospects of mediation and settlement. One of these factors is that parties sometimes do not have very much contact with each other prior to the hearing. Unlike National Court proceedings, where there are a number of pre-trial steps that require the parties or their lawyers to communicate, the District Court procedure is straightforward. There is nothing that requires parties to communicate with each other prior to the hearing and, often, a formal hearing commences without the parties canvassing the prospect of a settlement with each other.

Another factor that inhibits any discussion of settlement in the District Court is that parties often do not realise that settlement is a realistic or honourable alternative to engaging in a contested court hearing. There is an attitude among many parties that once a court action is commenced, it is best to “let the Judge decide”.

Further, many parties are not aware that mediation is a role that a District Court Magistrate is able to perform. It is up to the Magistrate to bring mediation to the attention of the parties as an alternative.

Even during a contested hearing, it may appear to the Magistrate that mediation could lead to a fair settlement. When this occurs, a Magistrate may interrupt the trial and discuss with the parties the prospect of mediation. If the parties agree to mediation, the Magistrate (provided that he or she is approved by the Judicial Services Commission to act) may change roles from that of a judge to a mediator.

24.8.6 Customary land proceedings

The Land Dispute Settlement Act deals with the resolution of disputes over customary land. There are three levels at which such disputes are resolved under the Act. They are by:

·           Land Mediators;

·           the Local Land Court; and

·           the District Land Court.

Although Land Mediators involve themselves in mediation, Magistrates are unlikely to be required to act as Land Mediators. The District Land Court is not required or empowered to perform a mediation role. However, Magistrates who sit as Local Land Court Magistrates are likely to be involved in mediation either directly or indirectly. It is this level of dispute resolution with which we are concerned. The Land Disputes Settlement Act is examined in Chapter 17.

Where a Land Mediator resolves a dispute over customary land, any agreement reached may be referred to the Local Land Court for approval. A Local Land Court Magistrate, in fulfilling his or her duties under s 19 of the Land Disputes Settlement Act, may form the opinion that the agreement cannot be approved in its present form. In such a case, the Local Land Court Magistrate may mediate between the parties in order to reach a satisfactory agreement. If this is successful, then the agreement reached can be approved under s 19.

Where an agreement is not reached at the Land Mediator level, the dispute will proceed to the level of the Local Land Court. Although the court is given the power to make a decision where there is no agreement, the court is also empowered, by s 28 of the Act, to mediate between the parties at any stage of the proceedings. In making a decision about whether or not to mediate, a Local Land Court should have regard to the nature of the dispute, the wishes of the parties and any other factors that bear on the prospect of a successful outcome to a mediation.

If mediation is embarked upon by a Local Land Court under s 28, the mediation may or may not be successful in resolving the dispute. If the mediation is successful, then it will be approved as an order of the court. The approval of the settlement as an order of the court should only take place if the Local Land Court Magistrate who is presiding at the hearing is satisfied that all parties fully understand the terms of the agreement. The provisions of s 40 of the Act require a visit to the land in question by the Local Land Court upon making an order other than a temporary order. When approving an order that has been reached by mediation under s 28, the same procedure should be followed.

Unlike the requirements of the Local Court Act, there is nothing to prevent a Local Land Court from continuing to preside and making an order, even after the members of the court have acted in an unsuccessful attempt at mediation.

Because a Local Land Court consists of a Land Court Magistrate and Land Mediators pursuant to s 23, mediation may involve several persons acting together as mediators.

As customary land disputes involve groups of people rather than individual parties, mediation over customary land may require the attendance of a number of people – sometimes in the hundreds.

24.8.7 Adultery and Enticement Act

District Court Magistrates often find themselves dealing with applications under the Adultery and Enticement Act. Section 10(1) of the Act says:

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“(1)      Before hearing an action under this Act, a Court shall endeavour to have the action settled by mediation”.

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At the least, this requires a Magistrate to inform the parties about mediation, how it might help them sort out their dispute without a court settlement, and the availability of the Magistrate to act as a mediator. Where the parties are willing to proceed with mediation, the Act says, at s 10(2), that the provisions of the District Courts Act dealing with mediation apply: see 16.5.4.

24.9 FORMALISING AN OUT-OF-COURT SETTLEMENT

Where parties are able to reach a settlement of their dispute prior to the hearing of a matter (by means of mediation or some other means), there are two separate methods for formalising the settlement. One method is to express their settlement in terms of a court order that is made by consent of all parties. The other method is to express their settlement in the form of a contract. One term of the contract is that the party who brought the proceeding will discontinue it or have it dismissed.

24.9.1 Consent orders

Although consent orders, by their nature, are sought by all parties to a dispute, Magistrates must remember that the approval of a consent order is a judicial act that requires careful scrutiny. In approving a consent order, a Magistrate must ensure that:

·           all parties have consented to the order being sought, and that their consent is expressed clearly, either in open court (in a manner that allows it to be reduced to writing in the form of a minute or memorandum by a Magistrate) or in writing;

·           the terms of the order being sought are within the jurisdiction of the court; and

·           none of the parties to the action are children or parties under some other legal disability: see 24.9.2.

24.9.2 Approval of settlements where a party is under a legal disability

Special considerations arise where one of the parties to a dispute where a consent order is being sought is an infant or a person with a legal disability.

A person who is under a legal disability does not have the authority to engage in binding agreements in the way that people who are not under a legal disability can. This prevents such people from entering into most types of contracts. A settlement of a court action by consent, either by means of a consent order or by means of a contract (and the withdrawal or dismissal of the action), is a type of contract and is, therefore, beyond the capacity of people under a legal disability. A Magistrate must be careful to ensure that sufficient evidence is heard to justify making the desired order on the merits of the case, rather than automatically endorsing the request of a party under a disability or their representative in court.

An agreement made out of court, which is not subsequently approved by the court, is not binding on the infant or person under a legal disability.