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Resolving disputes out of court

Information about dispute resolution in civil court matters, sometimes called alternative dispute resolution (ADR).

What is appropriate dispute resolution (ADR)?

ADR is defined in the Act as a process that a party attends or participates in to try to negotiate a settlement of their civil proceeding, or to resolve or narrow the issues in dispute, including, but not limited to:

  • mediation
  • early neutral evaluation
  • judicial resolution conference
  • settlement conference
  • reference of a question, civil proceeding (or part of such proceeding) to a special referee
  • expert determination
  • conciliation
  • arbitration.

See s. 3—Civil Procedure Act 2010 (Vic) (link below)

Obligations and duties set out in the Act apply to ADR

The paramount and overarching duties to the courts also apply to any ADR.

Two of these overarching obligations require parties to make reasonable endeavours to resolve, or at least to narrow the issues, in a dispute by agreement between the disputing parties, including ADR if this is appropriate.

They do not have to do this if:

  • it is not in the interests of justice to do so
  • a court decision is appropriate because of the kind of dispute.

An example in the Act where a court decision might be needed is if one party is asking that a civil penalty be ordered.

See ss. 11, 16, 22, 23—Civil Procedure Act 2010 (Vic) and 'What parties have to do' (links below)

Case management by the court

Before hearing a civil case, the court may send the parties off to sort out some or all of the issues in dispute using some kind of ADR. These powers are generally set out in Chapter 5 of the Act.

The court has power to do this even if one or all of the parties do not agree. However, if the parties do not want to use ADR, there are limits to the kinds of ADR that a court may order. The court cannot order the parties to have any kind of ADR which makes a final and binding decision/outcome. Therefore, unwilling parties cannot be sent off to arbitration, referred to a special referee, or to expert determination.

The power of the courts to order parties off to ADR is in addition to their other powers that the court has in relation to ADR.

See s. 47, 66, 69—Civil Procedure Act 2010 (Vic) and 'Case management by the courts' (links below)

Judicial resolution conferences and confidentiality

What is a judicial resolution conference?

A judicial resolution conference is any conciliation, settlement conference, neutral evaluation, mediation or other resolution process that is presided over by a magistrate, judicial registrar, judge, associate judge (depending on which court the parties have chosen) that is conducted to negotiate a settlement of the dispute.

See s. 3—Civil Procedure Act 2010 (Vic) (link below)

Restriction on use as evidence

If the court has ordered the parties to have judicial resolution conference (ADR), then anything that is said or done at that conference cannot be used as evidence in a related court proceeding unless this is ordered by the court. The court must consider the interests of justice and fairness when it makes a decision about the admissibility of this evidence.

A judicial officer who conducts a judicial resolution conference cannot be compelled to give evidence in any proceeding about anything said or done or arising from a judicial resolution conference.

See s. 68—Civil Procedure Act 2010 (Vic) (link below)

More information

Legislation

Civil Procedure Act 2010 (Vic)

  • s. 3—defines 'appropriate dispute resolution' and 'judicial registration conference'
  • s. 11—application of overarching obligations (include ADR procedures)
  • s. 16—application of paramount duty (include ADR procedures)
  • s. 22, 23—overarching obligations that include ADR processes
  • s. 47—court power to send parties off for ADR
  • Chapter 5—appropriate dispute resolution
  • s. 67—court use of evidence from judicial resolution conference (ADR)
  • s. 69—powers of court to order ADR are additional to their other powers

See Civil Procedure Act 2010 (Vic).

Magistrates' Court Act 1986 (Vic)

  • Part 5—civil proceedings
  • Part 5 Div 2—arbitration
  • Part 5 Div3—pre-hearing conferences
  • Part 5 Div 3A—mediation
  • s. 107A—interaction with Civil Procedure Act 2010 (Vic)

See Magistrates' Court Act 1989 (Vic).

County Court Act 1958 (Vic)

  • Part 2 Div 6—arbitration mediation and reference for inquiry

See County Court Act 1958 (Vic).

Supreme Court Act 1986 (Vic)

  • Part 2 Div 4—power of the court to make rules about:
  • s. 24A—no evidence of court referred mediation session shall be used in a proceeding without all parties agreeing
  • s. 25 (eab)—judicial resolution conferences
  • s. 25 (eac)—appropriate dispute resolution
  • s. 25 (ad)—case management
  • s. 25 (ae)—any other thing required or permitted under the Civil Procedure Act 2010 (Vic)

See Supreme Court Act 1986 (Vic).

Reference

Judicial College of Victoria

This college has developed the 'Civil procedure bench book' to support the judiciary.

See particularly '7. Appropriate dispute resolution' in Judicial College of Victoria—Civil procedure bench book.

Updated