Case Appraisal – An Alternative to Mediation

by Alex Nelson, Barrister-at-Law

Case Appraisal is an under-utilised ADR tool. Uniform Civil Procedure Rule 334 enables the Supreme, District and Magistrates Courts throughout Queensland to refer a dispute for Case Appraisal; a dispute resolution process in which an independent Case Appraiser makes a provisional decision in writing about the outcome of a dispute, giving a copy to the parties with a sealed copy being filed in the court.

Lawyers give their clients opinions about the prospects of success in litigation every day, but the fact is that one side is usually found to have been wrong in their assessment. Sometimes that might be the result of an unrecognised bias the lawyers have in favour of their own clients, or it might be a failure to identify or to properly assess an issue upon which the trial ultimately turns.

A Case Appraisal has the advantage of being undertaken by a fresh set of eyes, someone who is completely independent of the parties and who has been presented with both points of view.  In some ways, it is like the mediation that we would all like to have; where the wise old mediator has listened to both sides of the argument and then imparts his or her wisdom to the other party, helping them to see the sense in settling on your terms.  Mediators rarely take that kind of interventionist approach, largely because Australian National Mediator Standard 2(5) restrains them: “Mediators do not advise upon, evaluate or determine disputes”.

Standard 2(7) enables mediators to conduct an “advisory mediation” or an “evaluative mediation” involving the provision of advice or opinions, but that has to be done “in a manner that enhances the principle of self-determination and provided that the participants request that such advice be provided.” It is an approach that is rarely taken.  Even when it is, the Mediator can only go so far. It is an interests based process, facilitated by an independent, neutral third party in the hope of reaching a consensual outcome. The Mediator cannot impose a decision upon the parties..

Case Appraisal, on the other hand, is a rights based adversarial process where the outcome is thrust upon the parties. The Case Appraiser’s role is to give his or her opinion about the merits and likely outcome of a dispute if it were to proceed to trial.  In fact, they have to go further and actually make a decision that resolves the dispute which, at the election of the parties, can become binding upon them and can be enforced by the court.

It is a process that offers the parties the chance to test their evidence and their case theory as well as exposing what they consider to be their opponent’s weaknesses before an independent decision maker.  It does not depend upon the willingness of the other side to participate genuinely or to act at all in a conciliatory manner.  It is an early chance to impose a decision on your opponent as well as to identify weaknesses in your own case before it is too late.

During the process of a Case Appraisal, the Case Appraiser:

1. Meets with the parties to decide how the appraisal will be conducted (there is flexibility and much of the control remains with the parties as to the procedure to be adopted including the use of witness statements, the calling of some or all witnesses on some or all of the issues, the making of written or oral submissions or a combination of both, whether or not the decision would be accompanied by reasons).

2. conducts the hearing in the agreed way, including if necessary the examination of witnesses (compelled under subpoena if need be) on oath or affirmation;

3. considers the submissions of the parties;

4. assesses the merits of each case and provides a written decision on how it is to be resolved; and

5. Files a certificate in the court with a confidential copy of the decision

Binding Decision

If a party is unhappy with the Case Appraiser’s decision, they have 28 days to make a written election to proceed to trial in the usual way, but UCPR r344 provides that if they do not secure themselves a more favourable outcome before the Judge or Magistrate, they must pay all of the costs of the proceeding and of the Case Appraisal, unless there are special circumstances why that should not be the case.

After the time for electing to proceed to trial has passed, or beforehand if the parties are agreed, an order can be sought giving effect to a case appraiser’s decision.

You might think that the party on the wrong end of a case Appraiser’s decision would more often than not simply elect to proceed to trial but the statistics tell otherwise. The Supreme Court’s Annual Reports between 1995 – 2006 show that 83% of all referrals to Case Appraisal resolved without a trial; 78% accepted the Case Appraiser’s decision and 5% settled after the election to proceed was filed.  In the same period of time, 70% of referrals to Mediation were settled.  The Supreme Court stopped reporting the statistics of referrals to mediation and case appraisal in its Annual Report after 2005/06.

Case Appraisal can be ordered even if the parties have already had a mediation; r334(3), or it could be used as an alternative to mediation. They are not mutually exclusive.

Alex Nelson is a Barrister and a Nationally Accredited Mediator. He is available to conduct Case Appraisals in defamation claims, contract, property, consumer and partnership disputes.