Principles of Abandonment

As the first decade of the new millennium wanes and comes to a close, Australia is becoming more and more influential in world politics. Being a valuable economic mediator between the dominant super-power in the world, the United States, and the up and coming super-power of China, Australia’s importance to the world community is growing. The travesty of the situation is while acting as a mediator to nations, Australia’s mediation programs provided to its citizens are lacking some of the key innovations of the last twenty years, namely the providing of court appointed volunteer mediators to resolve the small value cases which present themselves before the court.  In failing to do so, the Australian ADR programs are showing a significant flaw. However, the federal and state governments can easily integrate volunteer mediation into the court systems as a standard service provided by the courts unilaterally across the several states.

This short essay’s sole purpose is to advocate one simple point, that a volunteer small claims mediation program would benefit all people who would be involved in the said program.  This essay draws its model from the program which is working quite successfully in the United States in the state of Florida (hereinafter the Florida Model).  Under the Florida model, each courthouse has a pool of mediators who volunteer as mediators, who in most cases volunteer once every six months (as the program runs either one day a week or two days a month).  The courts train these mediators; who in turn the court’s administrative body for dispute resolution, the Dispute Resolution Center, gives specific certification for dealing with small claims and county court cases.  The court then assigns each member of the pool of mediators a date, once every six months where they are to come to the courthouse for small claims first appearance.  At the first appearance hearing, the judge hears whether the defendant admits or denies the value of the claim.  On an admission, the judge sends the parties to a mediator to write up a settlement agreement or a judicial order; in the alternative on an admission the mediator could be asked to mediate a payment plan.  In the event of a denial, the judge instructs the parties to meet with a mediator to attempt to mediate a resolution to the problem.  Either way, the parties come out of mediation with one of two outcomes; either they have settled the case, whereas they will have a settlement agreement which will be signed by the judge, or they failed to reach a settlement and the program administrator or clerk of court assigns a court date.  The rational for the choice of the Florida Model is two fold.  First, time has shown the Florida Model to have great success in alleviating some of the case load pressure on the courts, greatly reducing the administrative costs which pressure the courts to rush through cases.1  Second, compulsory participation by the parties in the volunteer mediation program, has adapted some attorneys perception of mediation, encouraging them to pursue mediation to resolve a dispute prior to taking the matter to court.

One of the major issues in the creation of a volunteer mediation program is looking at what types of cases are conducive to volunteer mediation.  Under the Florida Model cases which fall under the purview of the small claims and county courts are ripe for volunteer mediators.  The value of jurisdiction for small claims case is $0-$5,000 (US), and the value for county court cases is $5,000-$15,000 (US).2  One of the points of logic justifying this system is the value of the case compared to the court costs for the case.  Cases under $15,000, when pursued to fruition, generally cost more to litigate than the results are worth (factoring in court costs, attorney’s fees, loss of work for court appearances, and accrued interest).3  Mediated cases only take approximately ten minutes of the judges time, an hour or two to mediate, and the case is resolved. Economically mediation provides the greatest benefit to the parties, with the least amount of work.  Volunteer mediation improves this equation by eliminating mediation fees from the problem, effectively reducing the cost of the case $200-$1,000 (US) per hour of mediation.4

Similarities between the Current Australian System and the Florida Model

Having established a case value for the argument, the next applicable question is whether the Florida Model is applicable to the Australian rules of Civil Procedure.  A broad analysis of the limited case law on the matter speculates that the Florida Model is applicable. Looking at the Civil Procedure code, Rule 323 §(1)(a-e) outlines the process for the court to appoint a mediator in a civil case.5  As one of the options under 323§(1)(a), the court may appoint a specified mediator to any given case.  This ability allows the judge, under an adopted Florida Model, to appoint someone from a pool of court certified volunteer mediators as a mediator for the case.6  Rule 323 §(1)(c) states “[A referring order for mediation must] set a period beyond which the mediation may extend only with authorisation of the parties or estimate how long the mediation should take to finish…”7  Having placed this ability under the purview of the court authorises the judge to set time limits on the volunteer mediation process.  In most cases in Florida cases are resolved or taken as close to resolution as possible within the space of two hours.8  Further as a rule of thumb, mediators are to terminate mediation and refer the case back to the court if no noticeable progress has been made in a half an hour block of time.9  A time portion of an order, following the Florida Model, under rule 323§(1)(c) could read, “Parties are to attempt mediation for two hours commencing upon the issuance of this order or until such a time that the mediator deems the mediation is no longer making progress, at which time the mediator will refer this matter back to the court.10  Should both parties after the two hours have passed, wish the mediation to continue the mediation may proceed till resolution is met or an impass is reached.”  Sections (d) and (e) of rule 323 are largely irrelevant under the Florida model as the volunteer mediators are present at the courthouse and the case mediation will be complete, for better or worse, two hours from the issuance of the order.11  Rule 323 §(2) deals with the requirement that cost be included in the order.  Under the Florida Model cases under $5,000 (US) would be mediated at no cost to the parties, (Filing cost are still paid at the time of filing the case), and county court case, cases from $5,001 (US) to $15,000 (US), have a nominal fee of $250 (US) per party.  Rule 323 § (3-6) are entirely of Australian concern and would not be affected by application of the Florida Model.12

The presumption of rule 324, that the mediator will not be present and waiting for a case, is flawed if the Florida Model is applied.13  As mediators will be waiting, there is no use for the “soon as possible” requirement.  However, the endorsement that all mediations should resolve within 28 days of the mediators appointment could be useful in the even parties agree to continue mediation after the two hour period.  Many mediators understand the usefulness of the looming “13th” hour when trying to settle a case.

Rule 325 has no apparent counterpart in the Florida Model but the innovation of a “good faith” clause in mediation proceedings is useful none the less.14  Rule 325 stipulates that parties must act reasonably and genuinely in the process and assist the mediator in finishing the mediation within the deadline.15  Therefore under the Australian system, parties who breach the “good faith” clause have violated the Civil Procedure rules and can be reported to the court.16  The “good faith” clause of rule 325 helps insure that parties will not engage in “dirty pool” practices or use mediation as a fishing expedition to probe the other side’s case for strengths and weaknesses.

Rule 326, establishes the mediators role in mediations.17  Australia’s established role for the mediator is more in depth than the parallel section of Florida code.  The Florida Model simply states, “The role of the mediator is to reduce obstacles to communication, assist in the identification of issues and exploration of alternatives, and otherwise facilitate voluntary agreements resolving the dispute. The ultimate decision-making authority, however, rests solely with the parties”18; whereas the Australian rules establish three clear faculties which the mediator must provide.  First, Rule 326 §(1) establishes the mediator’s ability to gather information about the mediation in “any way the mediator decides.”19  This purview grants a mediator much more leeway to personally investigate the matter at hand.  Rule 326 § (2) allows the mediator to select the representation of the parties at the mediation.20  Whilst this distinction gives strength to rule 326 § (3), it also undermines the impartiality concept inherent in mediation, forcing the mediator the make a judgment based on the parties relevant to the parties representation.21  Finally Section 3 of Rule 326 establishes that the mediator can meet individually with the parties, with or without their attorneys.  The import of this rule cannot be overstated.  By allowing the mediator the ability to meet with the parties individually, the courts have established that the mediator has complete control of the mediation, and the privilege of council can be averted if the council is impeding the mediation improperly.  Under the Florida Model, this rule is much different.  The mediator is at the leave of the parties when requesting to meet with parties exclusively or to separate the attorney and their client.22  While this causes the mediation to stay in the hands of the parties, there is also the difficulty of dealing with “difficult” parties.

Rules 327 and 328 again have no parallel in the Florida Model, but are not contradictory; therefore the Florida Model would still be applicable Australia. Rule 327 simply permits the mediator to seek direction of the court at any time during the mediation.23  Whereas the in practice interpretation of the Florida Model requires the mediators to maintain confidentiality and impass or refer the mediation to the court, the Australian model allows for the mediators to “break confidentiality”, using the term in the loosest sense, and seek direction from the presiding judge.  The reason for the loose usage of the term “break confidentiality” is while the mediator has breached the closed door of the room, the mediator still maintains the decision to not disclose facts to the judge when seeking advise; that is, control the information flow to the judge to maintain the judges impartiality should the case go to trial.  Florida Rule 10.370 (a-c) parallels Australian Rule 328, the allowing of mediators to seek independent advice, loosely.24  Once the mediation has begun, under the Florida Model, the mediator can only procure outside advice from third parties with the consent of the parties to the mediation.25  Uniquely, Australian Rule 328 § (1) allows the mediator to seek independent advice on the mediation from third parties.26 Comparatively, Florida Rule 10.370 § (b) states that a mediator may only recommend that the parties seek independent legal advice, and Rule 10.370 § (c) establishes that a mediator’s own personal, non-legal opinion may only be injected if it is “[c]onsistent with standards of impartiality and preserving party self-determination.”27  However, Rule 328 § (2) mirrors the Florida Model establishing that when fees are involved in the advice, then the mediator must seek the leave of the parties or the advice of the court.28   Sections 3 and 4 of Rule 328 simply establish the duties of the court in such matters and the obvious fact that should the parties request third party advice and pay for it, the mediator must disclose that information to the parties.29

Rule 329, further shows the compatibility of Australian law and the Florida Model in the confidentiality of records.  Whereas, the Florida Model establishes a duty upon the mediator to ensure the confidentiality of their records, the Australian law shifts the duty of the confidentiality of the records to the court.  Under Rule 10.360 § (C) of the Florida Model the law states, “A mediator shall maintain confidentiality in the storage and disposal of records and shall not disclose any identifying information when materials are used for research, training, or statistical compilations.”30  Comparatively, the Australian Law establishes a four part duty shared between the mediator and the court: (a) The files must be, “placed in a sealed container, for example, an envelope, and,” (b) marked with the file number, (c) sealed with a notice not to be opened “without order of the court” and, (d) filed with the court.31  Section 2, then states that the file may not be opened without court order.32  Finally, Section 3 instructs that the courts shall charge no fee for filing of the agreement.33

Rule 330 would require no change in interpretation should Australia administratively shift to the Florida Model for volunteer mediations in small claims courts as it directly parallels Rule 10.420 §(b) (3).34  Rule 320 § (a) states that the mediator has the ability to terminate the mediation if the mediator feels that the mediation is not going towards settling the case.35  Whereas under the Florida Model, the standard for termination is when the case becomes unsuitable for mediation, or either party is unwilling to move any farther toward settling the case.36  Rule 330 § (2) codifies the matters which are implied in the Florida Model by stating that the mediator must also inform the parties that he or she is terminating the mediation and also give the parties an opportunity to re-examine their position.37

Overall, the Australian Law is very close in substance to the Florida law on mediation.  These similarities would allow for an easy, low cost transition between the current system in place and a volunteer small claims mediation program.  As outlined in the next section, this transition would be of great benefit to all parties involved and allow the Australian courts to function more efficiently and thus cost less tax payer dollars.

Beneficiaries to a Volunteer Small Claims Mediation Program

After enumerating the similarities facilitating the assimilation of the Florida Model into the current Australia model, the next section of this short essay will discuss the beneficiaries of doing so.  The primary beneficiaries are the obvious ones.  Firstly, a Florida style volunteer mediation program benefits the parties the most.  Secondly, the process benefits the courts enormously.  Thirdly, there is a benefit to the local legal community.  Finally there are limited benefits to the mediators already in the community.  The quad-partite benefit scheme only endorses the feasibility and the need for Australia to adopt the Florida Model.  Coupled with the compatibility of the two systems and the low implementation cost, the benefits of the assimilation of the Florida Model into the Australian model illuminate the next logical step in the evolution of Australian mediation.

The first beneficiaries, the parties, benefit the most from a state run volunteer mediation program.  Litigations cost money.  This ugly fact looms over the primary dispute resolution process in every nation, the courts.  Mediation cost less money.  While this fact does not state the perfect solution to the economic systems abuse on litigants, it does ease the pain slightly.  So to the point of analysis, why does volunteer meditation benefit litigants more than the garden variety paid mediators in small claim cases?  The answer is simple, small claims cases have less benefit to the parties than larger cases.  Parties, whose rights are contingent on the resolution of a dispute, deserve the same standard of care parties with million dollar cases deserve.  However, the cold reality of economics prevents the feasibility of small cases going to mediation where charges may be upwards of $600 an hour.  A volunteer mediation program resolves this problem, at least at the small court level.  Parties have an option which will cost them less to resolve their dispute; or in the alternative, should the mediation impass, there will be no additional cost for the preservation of a preliminary right.  Further, the volunteer mediation program’s ability to expose parties to mediation at no cost can introduce people who do not understand mediation to the process.  Parties, who are not exposed to mediation, tend not to want to spend money on a process they do not understand.38  Further, years of television glorifying an unrealistic set of expectations of courtroom have brainwashed parties to assume litigation is their only recourse.  Parties also may not want to appear to be the weaker party by putting forward the idea of a non-adversarial approach to resolving a dispute.39  But the facts have shown, the volunteer mediation program is a success in Florida which benefits the parties immensely, and it can do so here in Australia as well.

The next beneficiary to volunteer mediation programs are the courts themselves.  As stated before, court cases cost money.  Unlike the parties or the attorneys the courts have no benefit for litigation other than fulfilling their duty of protecting the parties’ rights to trial.  This basically becomes a money pit for taxpayers who are not using the litigation system, an insurance policy based on the fact that they may make a mistake and get sued or have something horrible happen to them and be forced to sue someone.  Volunteer mediation programs make the money pit a little bit shallower, reducing the costs of small claims cases to the court and ultimately to the taxpayer.  State sponsored volunteer mediation programs bring high quality mediators into a pool usable by the courts.  One of the primary benefits of this system is that the mediator is not paid by anyone so the neutrality of the mediator is less likely to be impinged.40  By reducing the taxpayer liabilities of the people, while firmly establish equal rights in the small claims forum, a volunteer program would actually be more conducive to the courts duty as a rights protecting entity.

The tertiary benefactor of a small claims mediation program is the attorneys.  Small claims cases have high cost with limited returns.  While the hourly rate is still the vogue in Australia, preferred over the contingency billing system, it becomes difficult to justify charging grandiose fees in a small claims case.  A volunteer mediation program helps alleviate this problem too.  Mediation shortens the number of hours needed to be committed to the case, especially cases mediated after first appearance to the courts.  This allows attorneys to charge their full rate for the short amount of time rather than a reduced amount for a large number of hours.

The final beneficiary discussed in this article is the mediators themselves, specifically young mediators.  As mediation is becoming a prevalent alternative to trial as young attorneys are more and more being exposed to mediation, the growth of the field is inevitable.  The problem is the classic “experience” problem.  To get recruited to mediate, you need to get experience.  To get experience, you need to have mediated.  This quandary poses a major hurdle in younger attorneys making headway into the field.  Volunteer mediation can alleviate this problem.  Through getting trained and volunteering, young mediators can get the valuable experience they need while helping the community.

The final group a volunteer mediation program has a major benefit to is the mediators themselves.  Once again the “experience” problem rears up.  The attorneys of the Nintendo generation are supportive of mediation; however, it is difficult to get mediator positions “if you do not have enough grey in your hair.”41  Volunteer mediation has expressed it benefits time and time again; however, critics still challenge the legitimacy of the practice.42  Critics claim that having a pool of volunteer mediators coerces professionals to commit their time to assist the court in performing its duties;43  however, as seen under the Florida Model members of the legal community flock to the privilege of helping the court.44  Volunteering to help the court allows young mediators to gain experience.  The end result in the view of mediators should be a simple view point; young mediators get experience, experienced mediators do not lose anything, as they were not getting the small claims cases anyway, and the courts see a significant reduction in case load.  Volunteer mediation strongly empowers the mediation community in another way, exposure. Volunteer mediation allows parties who would not be party to mediation to experience the successfulness of the modality.45  As the benefits to the mediators are apparent, a question becomes “Why hasn’t Australia integrated volunteer mediation programs into the courts.

Overall, volunteer small claims dispute mediators would benefit the nation of Australia as a whole.  Section one of this essay shows the compatibility of the Florida Model and the Australian legal code.  Section two shows the benefits for all parties involved.  This is a program which could massively reduce the cost impact which small claims dispute tribunals have upon the Australian economy.  Less tax dollars spent on trials means more taxes spent on education and infrastructure, helping Australia raise its status in the world community.  As Australia is seen as a mediator between the United States and China, shouldn’t Australia ensure its people at home have the same benefits which it provides abroad?

Christopher W. Smithmyer J.D., MBA, M.A. Mediator/Arbitrator

Endnotes

1. Florida Dispute Resolution Center (DRC) Website, http://www.flcourts.org/gen_public/adr/brochure.shtml (Last Visited April 20, 2008)
2. See Florida Rules of Civil Procedure.
3. Id.
4. DRC, Supra [FN 1].
5. Uniform Civil Procedure Rules (UCPR) 323 (1999).
6. UCPR 323 § (1) (1999); Florida Rules for Certified and Court Appointed Mediators (Florida Rules) Available at http://www.flcourts.org/gen_public/adr/bin/RulesForMediators.pdf (Last Visited April 20, 2008); See Also Committee Notes on Rule §10.500 Florida Rules Available at http://www.flcourts.org/gen_public/adr/bin/RulesForMediators.pdf (Last Visited April 20, 2008).
7. UCPR 323 §(1)(c) (1999).
8. DRC, Supra [FN 1].
9. Florida Rules § 10.420 §§ (b)(3) (2007); See Also Committee notes on Florida Rule §10.420 available at http://www.flcourts.org/gen_public/adr/bin/RulesForMediators.pdf (Last visited April 20, 2008).
10. UCPR 323 (1999).
11. See Florida Rules.
12. See Florida State Courts Website, http://www.flcourts.org, (Last Visited April 20, 2008)
13. UCPR 324 (1999).
14. UCPR 325 (1999).
15. Id.
16. Id.
17. UCRP, 326 (1999).
18. Florida Rules for Certified & Court Appointed Mediators, §10.220 (2007)
19. UCRP, 326 § (1).
20. Id.
21. Id.
22. Florida Rules, §10.220 (2007).
23. UCRP, 327 (1999).
24. URCP 328 (1999), Florida Rule 10.370 (2007).
25. See Committee notes on Section 10.370, available at http://www.flcourts.org/gen_public/adr/bin/RulesForMediators.pdf (last visited April 20, 2008).
26. UCRP 328 § (1) (1999).
27. Florida Rules, § 10.370 (b-c) (2007).
28. UCRP 328 § (2) (1999).
29. UCRP 328 § (3-4) (1999).
30. Florida Rule 10.360 § (c) (2007).
31. UCRP 329 § (1)(a-d) (1999).
32. UCRP 329 § (2) (1999).
33. UCRP 329 § (3) (1999).
34. UCRP 330 (1999), Florida Rule §10.420 §§ (b)(3) (2007).
35. UCRP 330 §(1) (1999).
36. Florida Rules § 10.420 §§ (b)(3) (2007); See Also Committee notes on Florida Rule §10.420 available at http://www.flcourts.org/gen_public/adr/bin/RulesForMediators.pdf (Last visited April 20, 2008).
37. UCPR 330 §(2), See Also Committee notes on Florida Rule 10.420 Supra [FN ].
38. Louise Phipps Senft & Cynthia A. Savage, ADR in the Courts: Progress, Problems, and Possibilities, 108 Penn St. L. Rev. 327 at 329-30, (Summer 2003)“Theories as to why this is so include: parties do not know about or do not understand the possible benefits of mediation; parties (and their lawyers) prefer to choose familiar processes (i.e., litigation); when angry, people tend to choose adversarial rather than cooperative processes; American culture has created a litigious society; barriers remain related to many attorneys’ negative assumptions about the quality *330 of volunteer mediators and doubts about the neutrality of mediators associated with a court program; and parties (and their lawyers) do not want to look weak by being the first to suggest mediation–or any other settlement process.”
39. Id.
40. Robert W. Rack, Jr., Thoughts of a Chief Circuit Mediator on Federal Court-Annexed Mediation, 17 Ohio St. J. on Disp. Resol. 609 at 613 (2002), “The reasons are unclear. In-house mediation programs can appear to be more expensive to implement than volunteer and magistrate judge programs, or programs that refer litigants out to private mediators for a fee, since hiring a mediator adds a new direct cost to a court’s budget; however, closer inspection of the costs and productivity of the different types of programs challenges some of those appearances.”
41. A statement made to the author when he was applying to a mediation position.
42. See DRC Supra [FN1]; See Contra  Forest S. Moston, Institutionalization of Mediation, 42 Fam. Ct. Rev. 292 at 298 (2004).
43. Moston, Supra [FN 42].
44. DRC, Supra [FN 1].
45. Rack, Supra [FN 40].