How to apply for ADR in the Federal Court of Australia
Parties in the Federal Court can seek alternative dispute resolution (ADR) — mediation, arbitration, conciliation, neutral evaluation, or referral to a referee — under Part IVA of the Federal Court of Australia Act 1976 (Cth) and Division 28 of the Federal Court Rules 2011. The Court can order ADR with or without the parties' consent. Most mediations are in-house and at no extra Court cost.
The framework
ADR powers are set out in Part IVA of the Federal Court of Australia Act 1976 (Cth) — sections 53A (mediation/arbitration) and 54A (referee). The Federal Court Rules 2011 Division 28 provides procedure. Section 37M requires overriding purpose and encourages early resolution.
The process
Identify the right ADR process
Options include mediation (most common and non-binding), arbitration (binding), conciliation, neutral evaluation, and referral to a referee for fact-finding. Choose the process that fits the dispute shape.
Raise ADR at the first case management hearing
Section 37M of the Federal Court of Australia Act 1976 (Cth) requires parties to facilitate just, quick, and cheap resolution. Expect the Judge or Registrar to ask about ADR at every case management hearing.
Propose ADR to the other side
A written proposal with suggested timing, process, and facilitator helps. The Court encourages agreed proposals. Even if the other side refuses, the Court can order ADR under section 53A.
Draft consent orders or a referral application
If agreed, file consent orders referring the matter to mediation. If not agreed, file an interlocutory application seeking a referral order. Include the proposed timetable and costs treatment.
Choose the mediator or referee
Federal Court registrars act as mediators at no extra cost. Parties can also jointly nominate a private mediator or barrister. For technical matters, a referee with subject-matter expertise can cut years off a trial.
Prepare the mediation or referee brief
Exchange position papers, key documents, and a statement of issues. Mediators benefit from a focused brief of 5-15 pages plus supporting documents. Referees need technical data and instructions.
Attend the ADR session
Mediations are usually one day with both principals and solicitors present. Negotiate in good faith. The session is confidential under section 53B and "without prejudice" except for agreements reached.
Document any settlement
Any agreement should be signed on the day as binding heads of agreement or short-form deed of settlement. Include release, costs, confidentiality, and a consent order to dismiss or stay proceedings.
File consent orders or a referee report
Consent orders dispose of the proceeding. For referee referrals, the referee's report under section 54A is filed and the Court decides whether to adopt, vary, or reject it.
Return to litigation if ADR fails
If ADR does not resolve the matter, the proceeding continues. The Court cannot use without-prejudice communications against a party. Costs conduct during ADR can affect later costs orders.
Common mistakes
- Refusing reasonable ADR proposals and then being penalised on costs
- Attending mediation without authority to settle
- Not preparing a focused mediation brief
- Confusing referee referrals with expert reports — they are court-ordered fact-finding
- Assuming without-prejudice protection extends to agreed outcomes (it does not)
Get this process right with Quillio
Quillio can help classify the dispute for the right ADR pathway, draft consent orders, prepare a mediation brief, and summarise without-prejudice correspondence. See /practice-areas/civil-litigation or start a free trial.
This guide is general information, not legal advice. Federal Court litigation is technical — obtain advice from a solicitor or barrister experienced in federal jurisdiction.
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