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

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.