Getting on with it – The pragmatic

Getting on with it – The pragmatic, solution focused approach of the SAET in resolving disputes

MICHAEL ESPOSITO

The use of alternative dispute resolution (ADR) to resolve disputes has been particularly embraced in the South Australian Employment Tribunal (SAET).

According to President of the SAET, Justice Steven Dolphin, members of the SAET understand the culture of industrial relations and workers compensation and appreciate that compromise is often the best way for the parties achieve most of what they want out of their litigation.

“The costs of litigation, in terms of time, expense and personal stress, can be alleviated, if parties are prepared to compromise and reach agreement about the outcome of the litigation,” Justice Dolphin said. “I often say to litigants, ‘whilst you can afford to win this dispute, can you afford to lose?’”

“A resolution that the parties voluntarily enter into themselves, is usually the best and most enduring way to finalise the litigation.”

Conciliation Conferences

Conciliation is compulsory under s (43) of the South Australian Employment Tribunal Act.

Conciliation conferences take place at the outset of the litigation and is are conducted by Commissioners, who are not judicial officers but are nationally accredited mediators.

Conciliations conferences are subject to a six-week time limit, a deliberately strict timeframe to ensure parties move quickly to gather relevant evidence. A Commissioner holds an Initial Directions Hearing (IDH) to assess what is needed for Conciliation to take place, such as further evidence or medical reports.

About two thirds of disputes in the SAET are resolved at the conciliation conference stage. The remaining third are heard by Presidential members (judges and magistrates of the SAET).

“Conciliation is very successful at resolving disputes as the Commissioners are very skilled in ADR techniques and for the most part the practitioners and parties appreciate that resolving the dispute early is often the best way to proceed,” Justice Dolphin said.

Hearings and Determinations

ADR been a feature of industrial disputes and workers compensation for decades, and as such all Presidential members have all twice had experience in ADR as practitioners.

Disputes are case-managed by Presidential members using modern judicial case management methods. In colloquial terms, these methods aim to instil a culture of “getting on with it”, by using a hands-on approach ensure that the parties are conducting their litigation quickly and efficiently.

When a case is referred to a Presidential member, a Commissioner will provide a written Assessment and Recommendations document to the parties. That document often advises parties as to the strengths and weaknesses of their case and can recommend ways to resolve the case.

The Presidential member will then assess the case and advise on matters such as whether the case should it be listed for hearing straight away, if more evidence needed, or if parties are properly focussed on the correct legal approach.

“Presidential members take an active role in the litigation and do not passively just allow cases to meander through to hearing;” Justice Dophin said. “If a party wishes to rely on any particular evidence, they must persuade the Presidential member that it is relevant to the issues in dispute.”

“Presidential members will often question the need to either call a witness or cross-examine any particular witness if the evidence of that witness is uncontroversial. If evidence has not been arranged on a relevant topic, a Presidential member will often enquire why not, and ask which party should obtain that evidence.”

President Justice Dolphin said that assessments from Presidential members are usually very much appreciated by the parties as they give parties a clear sense of the trajectory of their case.

If a case is particularly unmeritorious, for example lacking in jurisdiction, a Presidential member will often hear arguments as to why that case should not be struck out or dismissed. Such issues are to be heard and determined at an early stage of the proceedings to avoid prolonging potential unmeritorious litigation.

At the appropriate time a Presidential member may conduct a Settlement Conference to assist the parties to resolve their differences. Judicial settlement conferences usually take between 1-3 hours.

In settlement conferences, Presidential members generally get involved in exchanges of settlement offers, and provide assessments on the merits of parties’ cases.

SAET President, Justice Steven Dolphin

Presidential members might hold private sessions – and often give robust assessments of the strengths and weaknesses of parties’ cases. These assessments usually help give parties clarity about the merits of their case and help to dispute the key matters in dispute.

On occasions, and in the appropriate case, a Presidential member may prepare a written assessment of merits document, which can be helpful in dealing with complex situations or large corporate entities that might have hierarchical management structures.

This is usually successful and appreciated by practitioners. Most litigants are looking for ways to resolve issues and appreciate Presidential members assisting them in resolving them.

Presidential members talk to parties about implications of going to trial, the realities of the experience, and potential difficulties if they have never been to court or have given evidence before.

Presidential members can also emphasise what pieces of evidence are relevant, and how the evidence may be viewed.

The involvement of Presidential members is not to sway parties’ decisionmaking, but to subject parties to a “reality check”. This pragmatic approach aims to ensure that parties have a realistic view of the prospects of their case.

For example, disputes will often hit an impasse over a settlement figure. Presidential members play an important role in helping parties agree on figure, so they do not get bogged down in minor differences in cost disputes.

Justice Dolphin said that litigants and the practitioners usually want to hear what a Presidential member’s opinions are on their dispute before they commit to running a trial.

Settlement Conferences, conducted by Presidential members have a high rate of success. Even if a number of settlement disputes do not resolve the dispute entirely, they usually narrow the issues in the dispute.

If a case does not settle after a Settlement Conference, the Presidential member who conducted that conference has no further involvement in that case thereafter. Another Presidential member will hear the case in court.

“There are always those cases that cannot be resolved by agreement and have to be heard and determined in the usual way in a court room,” Justice Dolphin said. “Such cases are where there are seriously contested facts, differing medical opinions that can’t be resiled and where a particular interpretation of a legislative provision is advocated for.”

Mediations

Traditional mediation is available for more complex, difficult cases such as workplace deaths and large and entrenched industrial disputes. Again, Presidential members conduct mediations, and to date the SAET has not had to use private mediators.

SAET published Mediation Guidelines in July this year, and have been published in full in the Bulletin

Mediation is different to Conciliation and Settlement Conferences. They are usually listed for half a day to a full day, and, as the guidelines suggest, are more facilitative than evaluative.

Statistics

The following statistics for the 2021-22 financial year illustrate the significant role that ADR plays in resolving disputes in the SAET. Notably, applications received by SAET have increased by approximately 23% in the last two years. This trend looks likely to continue in 2022-23.

Justice Dolphin noted that resolution timeframes in SAET would be improved further but for the timely receipt of medical evidence, often from more than one medical practitioner. • The SAET received 6,453 applications • The SAET resolved 6,344 applications, with a Clearance rate of 98% • Approximately 66% of applications were resolved by Commissioners at the

Conciliation level. • Approximately 34% of applications resolve before a Presidential member (including cases that run to judgment). • Approximately 350 cases were listed for hearing before a Presidential member in 2021-22. • The SAET produced 225 written judgments in 2021-22, meaning 3.5% of applications go to judgment. • The Median time from lodgement to resolution at Conciliation was 14 weeks (thus meeting the target of under 16 weeks. • The Median time from lodgement to judgment by Presidential member was 60 weeks thus meeting the target if under 80 weeks).

Conclusion

Justice Dolphin said that the SAET is a pragmatic forum that recognises that most cases involve everyday working people whose whole livelihoods may be at stake.

“The vast majority of disputes require practical, feet-on-the ground thinking. The cool detached indifference, often present in other areas of legal practice, is largely absent in SAET as the litigation will be about a particular problem within any one person’s working life,” Justice Dolphin said. “Resolving that problem usually comes from a realistic common-sense approach. Whilst legal technicalities of one sort or other often arise, we tend to focus on achieving a result that the parties can live with, rather than emphasising their differences.”

“ADR strategies are built into the litigation journey at SAET. Our strategies are designed to ensure quick and effective justice for working people. And our results show that we at SAET are meeting those aims.”

SAET Mediation Guidelines

1. Introduction

Where a case is before a Presidential member for hearing and determination, the case, or any aspect of it, may be referred to mediation pursuant to s 46 of the South Australian Employment Tribunal Act 2014 (SAET Act).

2. Purpose

Mediation is an informal process in which parties to a dispute with the assistance of an impartial mediator identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement.

The purpose of mediation is to achieve a quick and cost effective settlement or at least refine or narrow the issues in dispute to avoid the stress and expenses of proceeding to trial before a Presidential member.

Mediation is a separate and distinct process that differs from conciliation and settlement conferences.

3. Procedure

Unless otherwise determined by the President, the mediator will be a Presidential member. If so, all contact to the mediator should be to that Presidential member’s Chambers.

Whilst the procedure will ultimately be determined by the mediator, it is expected that the process will be more facilitative than advisory or evaluative in nature.

The mediator’s role is to facilitate direct communication between the parties.

The mediator has no advisory or determinative role regarding the content of disputes and is not tasked with expressing views as to the likely outcome of the dispute if it proceeds to trial before a Presidential member.

4. Preparation

Prior to mediation, the parties may be required to attend a Pre-Mediation directions hearing. At that hearing, directions may be made to facilitate the mediation process, and to ensure that the parties are fully prepared for mediation day. Mediations will generally be listed for one half day, or one full day.

One party may be ordered to prepare an agreed Mediation Book which will contain all necessary documents to be referred to in the mediation. The Mediation Book will remain confidential to the mediation. The parties may be ordered to prepare Position Statements setting out their respective cases including a history of settlement negotiations and settlement offers. In the ordinary course, the Position Statements will form part of the Mediation Book.

Unless otherwise ordered by the mediator, the mediation will be conducted in person at SAET’s premises. The mediator may permit parties to attend by videoconference or teleconference.

If parties have any questions, concerns or special needs for the mediation, they should raise them with the mediator as soon as possible prior to mediation.

5. Role of the parties

Parties and their representatives will do all things reasonably necessary for the proper, expeditious, and cost-effective conduct of the mediation.

Parties will comply with any direction made on procedural matters without delay.

Parties will attend the mediation with full authority to make decisions themselves and reach settlement.

The mediator may authorise the attendance of persons other than the parties and their legal representatives at the mediation.

Parties and their representatives are expected to actively participate in the mediation, show respect and courtesy in communicating, and negotiate in good faith with a view to reaching settlement.

The parties are encouraged to communicate openly. Mediation attracts the same privilege to defamation as court and tribunal proceedings. Evidence of anything said or done during mediation is inadmissible in proceedings before the Tribunal, except by consent of all parties to the proceedings.

6. Mediation Day

The parties are required to attend the mediation at least 15 minutes prior to the allotted start time and are to wait to be shown into the mediation room.

The mediator will: • commence mediation in joint session, unless good reason exists not to; • commence by welcoming the parties and introducing those in attendance to each other; • explain the mediator’s role; • explain that mediation is a confidential and without prejudice process, and will seek a verbal undertaking in that regard from those present; and • explain the mediation process.

Parties are expected to make brief opening introductions in turn setting out the relevant background, identifying the issues in dispute from their perspective and outlining what outcome they seek to achieve.

During their opening, each party will have the opportunity to speak without interruption. The mediator may assist the parties by asking them questions to clarify specific points.

After each party has made their opening, the mediator will facilitate direct communication between them and assist them to understand each other. The mediator will encourage an open discussion about the issues raised.

The mediator will ensure that breaks are taken during mediation, if necessary, to enable parties time to consider the issues and their positions.

The mediator may meet with the parties separately from each other in private sessions. These private discussions are an opportunity to confidentially explore the issues in dispute, party interests and positions, discuss strengths and weaknesses, benefits and risks, and to develop options for resolution in preparation for negotiation. The mediator may also meet with the parties without their representatives present.

The mediator will facilitate direct negotiations between the parties and may lead discussions with all parties together in joint session or may relay offers between the parties.

The mediator may adjourn the mediation to a later date, either under the conduct of the same or a different mediator.

7. Reaching agreement

If an agreement is reached, in whole or in part, it will be recorded in writing for the parties to sign on mediation day. Orders may be made at a later time to finalise the proceedings.

If an agreement is not reached, the mediator will discuss with the parties what the next steps in the proceedings will likely be including how to prepare for trial.

The mediator will not hear and determine the proceedings after conducting a mediation unless all parties agree to his or her continued participation.

These Guidelines have been approved by the President of the South Australian Employment Tribunal in accordance with r 10(2) of the South Australian Employment Tribunal Rules 2022. B