Title

Judicial mediation, the judicial process and Ch III of the Constitution

Date of this Version

1-1-2011

Document Type

Journal Article

Publication Details

Citation only

Field, I. (2011). Judicial mediation, the judicial process and the Ch III of the Constitution. Australasian dispute resolution journal, 22(2), 72-83.

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2011 HERDC submission. FoR code: 180123, 180104, 180108

© Copyright Thomson Reuters (Professional) Australia Limited, 2011

ISSN

1441-7847

Abstract

What is judicial mediation, and is it something that Australian judges can or should be doing? A number of commentators have addressed these questions, and a variety of conflicting views have been expressed. This article re-examines judicial mediation from a constitutional perspective. It demonstrates that judicial mediation will ordinarily satisfy the procedural requirements implied by Ch III, and that judges may therefore mediate as a function incidental to the exercise of judicial power. Even to the extent that judicial mediation might not, in practice, satisfy these requirements, it is argued that a constitutional challenge to legislation or rules of court implementing judicial mediation is unlikely to succeed.

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This document has been peer reviewed.