Practice Direction No. 55

Practice Direction No. 55

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Court Referred Mediations

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| panel of mediators | mediation officer | fees of mediators | security for mediator’s fees |

| referral to mediation | informing the mediator | mediation agreement |

| convening the preliminary conference | preliminary conference | premises and facilities |

| change or discharge of the mediator | conduct of the mediation | report on progress |

| implementing settlements | review date | questionnaire |

| appendix a: approved courses for mediators | appendix b: consent orders |

| appendix c: report by mediator to the mediation officer |

1. This Practice Direction applies as from 1 December 2003 to mediations under s65 of the Supreme Court Act and s32 of the District Court Act, but subject to any contrary directions given in a particular action.

2. Panel of Mediators

(1) The President of the Law Society of South Australia, The President of the Bar Association of South Australia and the President of the Institute of Arbitrators and Mediators Australia will establish, and review at least annually, a panel of suitable persons to whom the Courts may refer mediations (“the Panel”).

(2) Persons may only be admitted to the Panel if they:

(a) have applied to be admitted to it; and

(b) are suitable to be appointed under section 65 of the Supreme Court Act or section 32 of the District Court Act; and either:

(i) have undertaken a course approved by the Chief Justice and the Chief Judge as set out in Appendix A and can demonstrate experience as mediators; or

(ii) have established substantial practical experience in the conduct of mediations such that it is appropriate for them to be admitted to the Panel without having undertaken an approved course; or

(iii) are former Judges of the Supreme Court or of the District Court.

(3) Members of the Panel undertake to accept appointment by the Courts as Mediators for mediations proceeding under the terms of this Practice Direction.

(4) The Law Society of South Australia will send to the Chief Justice and the Chief Judge by 1 December 2003, and by 1 July in each succeeding year, and at such other times as are requested, a list of the members of the Panel with such information about them as they may require.

(5) The Chief Justice and the Chief Judge may at any time terminate the appointment of any person to the Panel.

(6) An appointment to the Panel is no guarantee that any member of it will be nominated for a mediation.

3. Mediation Officer

(1) The Chief Justice and the Chief Judge will appoint a Mediation Officer (“the Mediation Officer”).

(2) The Mediation Officer will:

(a) provide information to the parties to the proceedings;

(b) contact nominated Mediators and provide information to them;

(c) advise Mediators of the availability of premises and facilities of the Court and, if requested, to provide access to them;

(d) receive Mediators’ reports at the conclusion of mediations; and

(e) monitor the Court’s file management system and contact the Mediator and/or the parties in the event of delay.

4. Fees of Mediators

(1) Mediators who are legal practitioners are entitled to charge fees for their work in accordance with the Masters’ Guide to Counsel Fees.

(2) The fee charged under (1) must not exceed the Guide unless a higher fee has been approved by a Judge or Master.

(3) The fees for Mediators who are not legal practitioners are not to exceed those in the Guide.

(4) The parties to the action are jointly and severally liable for the payment of the Mediator’s fees and the solicitors on the Court record for the parties are to use their best endeavours to ensure prompt payment of those fees.

5. Security for Mediator’s fees

(1) Where, by a term in the Mediation Agreement the Mediator is entitled to secure payment of an amount specified in that Agreement, that may be done in accordance with that Agreement by the deposit of that amount by a specified date into:

(a) the Mediator’s trust account:

(b) the trust account operated by the Institute of Arbitrators and Mediators Australia; or

(c) the trust account of a solicitor for one of the parties.

(2) Unless the parties to the action agree otherwise they are jointly and severally liable for the payment of any security for the Mediator’s fees.

(3) In the event that the trust account of a solicitor for a party is used that solicitor undertakes that such funds are held in trust and will be used to pay the Mediator in accordance with the Mediation Agreement.

(4) In the event that any fee is charged by the Institute of Arbitrators and Mediators Australia for the use of its trust account such fee is payable by the parties equally.

6. Referral to Mediation

(1) In any action the Court, in exercising its powers under Statute or the Rules, may refer the action, or any issues arising in the action, for mediation by a named member of the Panel (“the Mediator”).

(2) The Mediator is to be a member of the Panel agreed upon by the parties, but if they cannot agree it may be a member nominated by the Court.

(3) Prior to the referral of an action for trial the parties may initiate a mediation by filing a consent order under Rule 84.05(3) signed by or on behalf of all parties substantially in the form in Appendix B.

(4) The Court may give directions requiring a party to provide materials to the Mediator.

7. Informing the Mediator

(1) The Mediation Officer will advise the Mediator of the Order made and of other relevant details.

(2) The Court will not provide its file to the Mediator.

8. Mediation Agreement

(1) The Mediator and all of the parties must as soon as practicable execute a written Mediation Agreement in such terms as are mutually agreed between them (“the Mediation Agreement”).

(2) The last of the Mediator and the parties to execute the Mediation Agreement is forthwith to lodge a copy of it with the Mediation Officer.

9. Convening the Preliminary Conference

(1) As soon as practicable after the reference for mediation each party is to notify the Mediator of an appropriate contact person for that party.

(2) Within 10 business days of being advised of the reference the Mediator will convene a Preliminary Conference and notify all parties of its date, time and place.

(3) If a Preliminary Conference is not convened in accordance with (2) above, the Mediation Officer is to be notified and is to liaise with the parties about any further arrangements for the mediation.

(4) Prior to the Preliminary Conference the parties are to deliver to the Mediator a copy of the Court record for the action and all pleadings filed in the action, or if no pleadings have been filed, a summary of the issues said to create the dispute and a statement of the relief claimed or outcome desired from the proceedings.

10. Preliminary Conference

(1) At the Preliminary Conference the Mediator will:

(a) address the matters to be dealt with in the Mediation Agreement, including the basis of the fees to be charged by the Mediator and the liability of the parties for such fees;

(b) ensure that the Mediation Agreement is signed;

(c) give directions for the preparation of any documents for use at the mediation;

(d) obtain agreement from the parties on any documents to be provided for use during the mediation;

(e) set a timetable for the mediation with an expectation that it will be conducted within 4 weeks of the Preliminary Conference;

(f) ensure that where required proper security has been made for payment of the Mediator’s fees.

(2) The parties will attend the Preliminary Conference and co-operate with the mediation process including:

(a) signing the Mediation Agreement;

(b) preparing any documents for use of the mediator as may be required by the Court or the Mediator;

(c) complying with all directions as to conduct of the Mediation as may be given by the Court or the Mediator;

(d) ensuring prompt payment of the mediator’s fees.

11. Premises and facilities

(1) If premises and facilities provided by the Court are needed for the Preliminary Conference or the mediation, the Mediator will book the premises and facilities with the Mediation Officer.

(2) If the Preliminary Conference, or the mediation, exceeds the time allocated by the booking, and the premises and facilities are required for another mediation, either the mediation must be adjourned or the venue shifted to other premises arranged by the Mediator and the parties.

12. Change or discharge of the Mediator

(1) If the Mediator nominated is unable to conduct, or complete, the mediation, the parties may obtain the appointment of an agreed alternative Mediator from the Panel by filing at Court a consent order under Rule 84.05(3) in substantially the form of the order in Appendix B.

(2) If, prior to the completion of the mediation, the Mediator and all parties agree that the mediation should not be pursued to its conclusion, the Order for the mediation may be discharged by a consent Order under Rule 84.05(3) being filed at Court in substantially the form of the Order set out in Appendix B.

(3) Where there is any delay in the completion of the mediation the Mediator, or any party, may apply to the Court for further directions.

13. Conduct of the mediation

The mediation will be conducted as required by the relevant legislation and Rules, and in accordance with the Orders of the Court and the Mediation Agreement.

14. Report on progress of the mediation

(1) The Mediator will:

(a) within 2 days of the completion of the mediation;

(b) no later than 7 weeks after the referral for mediation; and

(c) as requested by the Court or the Mediation Officer,

report in writing to the Court on the result or progress of the mediation and, if it is not completed, on how long it is expected to take to complete it.

(2) A report from a Mediator in the form in Appendix C may be sent to the Mediation Officer by post, fax or email.

15. Implementing settlements.

If the mediation results in the settlement of the action or its outcome requires orders to be made, the parties may, as appropriate:

(a) obtain a consent judgment under Rule 84.05(3) by filing at Court a duly executed consent to judgment;

(b) request the Mediation Officer to list the action before a Master or a Judge for such orders as are required; or

(c) discontinue the action.

16. Review date

The Court file management system may create a review date approximately 8 weeks after the referral to mediation to review the report from the Mediator and the progress of the action.

17. Questionnaire

The Mediation Officer may invite the parties and their solicitors to respond to a questionnaire setting out their views of the mediation experience. The responses may be used when reviewing the Panel of Mediators or any changes to the scheme.

DATED the 1 June 2005.

(Edie Bransbury)

Registrar

APPROVED COURSES FOR THE PURPOSES OF ADMISSION TO PANEL OF MEDIATORS

1. An approved course is one that meets the following minimum criteria:

(a) the course comprises at least 3 days of training;

(b) the course includes a theoretical background to mediation and negotiation as well as practical training sessions;

(c) the course provides the opportunity for each participant to undertake at least two simulated exercises as mediator, with one of those exercises being assessed by a trained mediator who provides direct written feedback to the mediator on their performance;

(d) the course has been approved by the Chief Justice or nominee.

2. Currently approved courses are offered by the following institutions:

(a) University of South Australia

· Graduate Certificate in Mediation (Family)

· Graduate Certificate in Mediation (Workplace Relations)

· Graduate Diploma in Conflict Management

· Master of Conflict Management

(b) Adelaide University in Conjunction with IAMA

· Three day Basic Mediation Workshop and Mediation Accreditation session (as an adjunct to the Professional Certificate in Arbitration and Mediation)

(c) LEADR (Leading Edge Alternate Dispute Resolvers)

· Four day mediation workshop

(d) Bond University

· Three day Basic Mediation Course

(e) The Accord Group

· Four day Commercial Mediation Training Course

(f) The Institute of Arbitrators and Mediators

· National Mediation and Conciliation Course

(g) Harvard Law School – Mediation Workshop

(h) Optima Psychologists & Mediators:-

· Mediation Intensive May 6-9 & May 21-23 2004

(i) The Trillium Group

· Negotiation & Mediation Workshops

(j) Adelaide University

· The Professional Certificate in Mediation/Deans Certificate in Mediation held on 20 & 21 September 2003

· Accreditation for Mediators 2 day course held in December 2004

3. Mediators who have previously undertaken courses that were approved by the Law Society of South Australia for the purposes of the Law Society establishing a list of members who wished to act as mediators will be eligible to be admitted to the Panel.

CONSENT ORDERS

ACTION FRONT SHEET

CONSENT ORDER TO BE MADE UNDER RULE 84.05(3) and (4)

By consent and pursuant to Rule 84.05 THE COURT ORDERS AS FOLLOWS:

(vary or supplement the following as appropriate and delete as required)

· Pursuant to s65 of the Supreme Court Act 1935 (or s32 of the District Court Act 1991) the Court appoints AB as a mediator and refers the action (or specified issues) to mediation.

· The Order made on 200X appointing AB as mediator is varied by substituting XY as the mediator as from the date of this Order and AB is released as the mediator.

· The Order made on 200X for mediation is discharged and AB is released as the mediator.

DATED 200X

…………………………….

Mediator

……………………………..

Solicitors for the Plaintiff

……………………………..

Solicitors for the Defendant

REPORT BY MEDIATOR TO THE MEDIATION OFFICER

Supreme/District Court

I, AB, the Mediator appointed by the Court in this action, report to the Court as follows:

1. (Set out the result of the mediation or progress made in it.)

2. (If applicable) I anticipate the mediation will be completed by 200X.

DATED 200X.

…………………………………

Mediator