Alternative dispute resolution in the Land Court
The Land Court is committed to resolving disputes cost-effectively and efficiently.
Therefore, the Land Court promotes the use of alternative dispute resolution (ADR) processes to help parties reach agreement without the need for a court hearing.
The Land Court has two ADR options:
- preliminary conference
- formal mediation.
A member of the court or judicial registrar can arrange for parties to attend a preliminary conference or mediation at any time before the final hearing of their matter.
A preliminary conference is an informal meeting between the parties to identify the issues in dispute, discuss those issues and try to find a mutually acceptable outcome without a court hearing.
This is a court-supervised process usually chaired by the judicial registrar, though a member of the court may preside sometimes.
Preliminary conferences are automatically offered for:
- appeals against valuations under the Land Valuation Act 2010 where the valuation is less than $5 million
- mining compensation and land access cases.
How a preliminary conference works
A preliminary conference allows parties to discuss matters fully and openly, and put forward settlement offers to resolve the matter at an early stage of the dispute.
Conferences are conducted ‘without prejudice’, meaning discussions occurring during the conference are confidential and can’t be used by either side as evidence at any subsequent court hearing.
You can bring any supporting documents that may better explain your position, such as maps, photos, etc.
You don’t have to accept any settlement offer discussed at the conference. You may ask for time to consider your position and you retain the right to a formal hearing if you wish.
Generally an hour is set aside for a preliminary conference. If parties are actively moving towards a settlement after one hour, the time may be extended or another session might be scheduled.
Matters suitable for a preliminary conference
Any matter before the Land Court may benefit from a preliminary conference. However, they are not usually offered in cases with complex issues or questions of law, or where detailed technical evidence will be considered, as such cases don’t suit the conference process. More complex matters are better suited to formal mediation (see below).
You must come to the conference prepared to participate meaningfully and courteously, and to identify and discuss the issues in dispute to try to negotiate a settlement.
Each person attending the conference must be familiar with the substance of the issues in dispute and have the authority to settle the matter or recommend settlement.
As this is a court process, parties must treat each other and the chairperson with respect. Aggressive or abusive conduct will not be tolerated and may result in termination of the conference. Additionally, the offending party may be liable for contempt of court.
The role of the member or judicial registrar
The member or judicial registrar facilitates discussions and ensures each party has an equal opportunity to participate.
The member or judicial registrar may also indicate how the court might approach the matter if the case doesn’t settle, but they don’t give legal advice.
If the parties agree on a resolution, the member or judicial registrar can make final orders disposing of the matter at the conference.
If a court hearing is needed, the member or judicial registrar who has chaired the preliminary conference can’t preside over the hearing without consent of the parties.
Address a Land Court member as ‘Your Honour’ and the judicial registrar as ‘Sir/Madam’ or as introduced.
If there is no settlement
If agreement has not been reached by the conclusion of the conference and there is no prospect of settlement, the appeal will be scheduled for a formal court hearing.
If there is some prospect of settlement and the parties want additional time to continue their negotiations, the parties will normally be granted a period of 2 to 4 weeks for further discussion.
Scheduling a preliminary conference
A preliminary conference is scheduled in consultation with the parties as soon as practical after the proceeding starts (usually within six months). However, as conferences are normally held in the district where the land is located, this timeframe may be exceeded in some remote centres.
If you need to have your matter heard urgently and the other party agrees, you can ask that a preliminary conference be conducted by telephone.
Once a date has been allocated for your conference, you and any representative must attend the conference in person.
If you or your representative wish to appear by phone, write to the court at least 14 days before the date scheduled for the preliminary conference. The court will permit phone appearances only in exceptional circumstances.
A key principle of mediation is that parties have a right to negotiate and determine the outcomes of their own conflicts.
Formal mediation is an efficient method of dispute resolution and, more often than not, mediations in the Land Court lead to settlement. Resource benefits are substantial, saving the parties and the court considerable time and money.
Mediation enables parties to resolve issues on their own terms, rather the court imposing an outcome.
Mediation focuses on what interests the parties have in common and what areas the parties are willing to agree on.
How formal mediation works
The court may refer any proceedings, or part of any proceedings, for mediation by a mediator agreed to by the parties or appointed by the court. The parties can request mediation at any stage of the proceedings, even after a hearing has commenced.
The court can provide a mediation service at no cost to the parties by referral to a member or judicial registrar. It may also refer proceedings for mediation to an external mediator not associated with the court if parties agree. The parties pay the costs of an external mediator.
Formal mediation is a more structured process than a preliminary conference. The mediation process is under the mediator’s direction and control. They may ask the parties to prepare a mediation brief and written outline of their position before the mediation.
Parties must attend in person or be represented by a person with full authority to settle the matter. The mediator may also authorise experts and other advisors to attend the mediation.
When a matter is listed for Land Court mediation, a deputy registrar or other court officer contacts each party to discuss arrangements, including:
- date, time and venue (if not already fixed), and any special requirements regarding physical access, or audiovisual or other facilities
- who the parties wish to have participate, including expert witnesses or other advisors
- whether the party will attend in person or be represented by a person with full authority to commit to an agreement
- if they won’t be represented by someone with that authority, why it’s not possible and how the party would endorse a negotiated agreement.
Confirmation of mediation process
Following intake, the mediator approves the arrangements and sends details to the parties. The arrangements include:
- any preconditions, expectations or requirements
- who will participate and their roles
- what material parties should provide (if any) and when.
Generally the parties must give the mediator (but not each other) a statement outlining:
- the issues raised by the proceedings
- how they would like the matter resolved
- confirmation that their participants are available for the mediation.
The mediator’s role
The mediator facilitates discussion but doesn’t determine the merits of the case. They help parties isolate disputed issues and develop options leading to settlement. They may ask questions, encourage open discussion, offer different perspectives and express issues in different ways.
You should actively participate in the mediation, discuss and seek to resolve the issues.
Before the mediation, consider how to best express your own interests and how you may accommodate the other parties’ interests in any agreement.
Mediations are conducted ‘without prejudice’, meaning all mediation discussions are confidential and can’t be used by any party as evidence in a subsequent court hearing.
After the mediation, the mediator destroys all materials provided to or prepared by them, whether or not the mediation is successful.
If there is no settlement
If the matter doesn’t completely resolve at mediation, the mediator may make directions for the further conduct of the proceedings.
A member or judicial registrar who has acted as a mediator can’t preside over any future hearing of the matter unless the parties agree.