Mandatory mediation in Australia’s civil justice system

Abstract

As courts have buckled under the pressure to provide quick and efficient access to justice the practice of mandatory or quasi-mandatory mediation has proliferated across Australia, and, indeed, now occupies the position of Australia’s default dispute resolution mechanism. However, it remains unclear whether mandatory mediation has led to widespread improvements in access to justice or a reorientation of the legal system away from adversarial culture. In many cases, mandatory mediation appears to comprise a rough banging of heads together to achieve a quick settlement rather than the iterative, transformative process envisaged by traditional mediation practitioners. Where there is significant power imbalance between the parties, an emphasis on diversion rather than just and sustainable outcomes can be problematic.