Friday, 15 October 2010

Early Neutral Evaluation

Chief Magistrates' Direction No 4 of 2010 was published this week.

It introduces a pilot ADR programme to run at Melbourne Magistrates' Court from the start of next month. It's exclusively for civil claims. The findings of the magistrate who presides over the hearing will not be binding on the parties. The name that has been given to the pilot is Early Neutral Evaluation (ENE).

Something similar has been running in the Supreme Court for a year. Non-judicial ADR (referred to as court-annexed mediation) has been going on at some sittings of the Magistrates' Court for a couple of years now.

How much difference there will be between the running of an ENE and a regular arbitration hearing will probably depend on the individual magistrate. The hearing will take place in a courtroom but it's not expected that oral evidence will be received in most cases.

The direction provides at point 9(3) that the hearing will not be sound-recorded. (It's probable that the hearing would be privileged as an attempt at settlement negotiation under s 131 Evidence Act 2008 anyway: see, for example, Wilson and Anor & Roberts and Anor (No. 2) [2010] FamCA 734.)


Trent77 said...

Contest mention for law suits!

Dr Manhattan said...

That's one way of putting it, Trent.

I'm convinced that the Melbourne registry's practice of listing far more arbitrations than could ever be heard in a day is a deliberate attempt to foster settlement between the parties. This pilot just formalises the process a little more.

Contest Mention in the criminal jurisdiction is out of favour now that Summary Case Conferencing is widespread. Perhaps the Magistrates' Court should consider turning the tapes off where it's still going on. Nothing that is said during those hearings is admissible anyway, and it just might promote a free and frank exchange of ideas between parties and bench.

RK O'Neill said...

In case you are interested here is a presentation that Deputy Chief Magistrate Peter Lauritsen delivered to the AIJA conference in May about the Broady project.

Nick Moblis said...

A negotiated settlement is not for everyone and lawyers and judges should not always be driving to a deal. They have not failed just because a matter goes to trial. Litigants are entitled to there day in court. ADR and the new Civil Procedure Act is that it misses that important point.

Anonymous said...

I thought this website is about CRIMINAL LAW?

Dr Manhattan said...

Like any lawyer would recommend, Anon, you must read the fine print. Potted thoughts and meanderings about law, legal developments and criminal prosecutions are discussed here. What happens in one jurisdiction will inevitably impact elsewhere.

Thanks for the info, RK! I haven't had the chance to get to it yet, but will read it with interest.

I heartily agree that everybody is entitled to their day in court, Nick. Some people are more interested in having a court agree with their point of view than they are the financial compensation that may flow from judgment in their favour.