La Trobe Law School PhD student, Rebecca Edwards, presented a paper on her research at the Asia Pacific Mediation Forum’s Annual Conference, held in Lombok, Indonesia from 10-12 February 2016. The conference was conducted bilingually in Indonesian and English and included participants from 14 countries. In addition to mediators and lawyers, 50 Indonesian judges were present at the conference, which was supported by the United Nations Development Program. There was much discussion about the new Indonesian Supreme Court rules mandating court-annexed mediation and the practicalities of how it was to be implemented.
Increasingly, litigants are unrepresented in the justice system. There are a number of reasons for this including the increasing cost and complexity of legal services, and cuts to Legal Aid and other legal support services such as Community legal Centres. The increasing volume of unrepresented litigants in the justice system creates challenges.
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. The idea behind this innovation appears to have been to give unrepresented litigants the opportunity to obtain advice (either legal or non-legal) on the merits of the settlement reached at the mediation and to be able to withdraw, without penalty, from the settlement if, on reflection or on the basis of advice, the agreement was no longer appealing. It also sought to reduce any undue pressure on unrepresented litigants to settle their dispute on the day of the mediation.
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 2%) 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.
Rebecca Edwards is currently completing her doctoral thesis at La Trobe Law School under the supervision of Dr Francine Rochford, Professor Mary Anne Noone and Dr Lola Akin Ojalabi. Her thesis is an analysis of VCAT’s mediation cooling off period. Rebecca has also been employed on a sessional basis in the School of Law for the last 9 years teaching a large number and broad range of subjects including Environmental Law, Criminal Law, Rural and Regional Issues in Justice and Dispute Resolution, as well as teaching law related subjects for the School of Social Work and the School of Public Health.