Rebecca Edwards, Sessional Lecturer, La Trobe Law School, will be speaking at the ADR Research Network Roundtable in Sydney on 12 and 13 September. Her presentation is entitled “Mediators’ perspectives on the compulsory cooling-off period offered in certain Victorian Civil and Administrative Tribunal mediations”.
Since its inception, the Victorian Civil and Administrative Tribunal (“VCAT”) has embraced ADR and developed practices and procedures aimed at supporting unrepresented parties. Consistent with this philosophy, in June 2009 VCAT implemented an innovative strategy aimed at supporting unrepresented litigants in mandated mediations involving an unrepresented litigant and a mediator who is not a Tribunal member (known as a panel mediator). The strategy was to provide parties in these mediations with a cooling off period of two business days, enabling them to withdraw from a meditated agreement without penalty.
Although the practice continues, until now, this innovation has not been reviewed or assessed in any formal way. VCAT’s own data shows that very few (approximately 6%) of parties withdraw from their mediated agreements during the cooling off period. However, there has been no research done on whether those unrepresented litigants use the cooling off period to seek advice about their mediated agreements and/or whether the cooling off period gives the unrepresented party greater control during the mediation process and/or greater satisfaction with the outcome of the mediation after the process is complete. With VCAT’s practical assistance, research into the experiences of parties is currently being undertaken.
As a first stage of the research, panel mediators, who must offer the cooling off period in mediations, have been surveyed and interviewed regarding their views on the benefits and disadvantages of the cooling off period, including any impacts they believe it has on the outcomes of the mediation. There are strongly contrasting views; some believing it makes parties feel less pressure to settle and more comfortable with a settlement, others believing there is potential for parties to abuse the process for their own advantage.